Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-055

Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

Appearances:

Liberty & Freedom Legal Group, attorneys for petitioner, by Richa Raghute, Esq.

Liz Vladeck, General Counsel, attorneys for respondent, by Gil Auslander, Esq.

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied his request that respondent (the district) fund the costs of his daughter's tuition at the International Academy for the Brain (iBrain) for the 2023-24 and 2024-25 school years.  The appeal must be sustained in part.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

The student has received a diagnosis of quadriplegic cerebral palsy and is non-verbal and non-ambulatory (Parent Ex. F at pp. 1-2, 18; Dist. Ex. 20 at pp. 1, 3).^[1]

On October 4, 2023, the parent referred the student to the CSE for a determination of whether the student was eligible for special education services as a student with a disability (see Dist. Ex. 28 at pp. 8-10).  On October 20, 2023, the CSE convened for an initial eligibility meeting and determined the student was eligible for special education services as a student with multiple disabilities (see Parent Ex. H; Dist. Ex. 22 at p. 1).^{[2], [3], [4]}  The October 2023 CSE recommended the student receive a 12-month program in a 12:1+(3:1) special class in the areas of math, English language arts (ELA), social studies, and science in a district specialized school (Parent Ex. H at pp. 8-9, 14).  In addition, the October 2023 CSE recommended special transportation as follows: transportation from the closest safe curb location to school, lift bus, door to door, and accommodations for the student to get on and off the bus with a wheelchair (id. at p. 13).

The district sent the parent prior written notice of the October 2023 CSE recommendations, consent for initial provision of services, a school location letter, and parent notification of participation in the New York State alternate assessment on November 9, 2023 (see Dist. Exs. 21-22).

On January 23, 2024, the parent electronically signed a school transportation annual service agreement with Sisters Travel and Transportation Services, LLC (Sisters Travel) for the period of October 11, 2023 through June 30, 2024 (see Parent Ex. E).  Next, on March 20, 2024, the parent electronically signed an annual enrollment contract with iBrain for the student's enrollment from October 11, 2023 through June 21, 2024 (see Parent Ex. D).^[5]  Then, on March 26, 2024, the parent signed a nursing service agreement with B&H Health Care Services, Inc. – d/b/a Park Avenue Home Care (Park Avenue) effective from March 26, 2024 through June 21, 2024 (see Parent Ex. O).

On March 20, 2024, the parent notified the district of his disagreement with the October 2023 IEP and intent to unilaterally place the student at iBrain for the 2023-24 extended school year (see Parent Ex. C).

On April 29, 2024, the district provided prior written notice of the recommendation for special education services based upon the October 2023 IEP and school location letter for the 2024-25 school year (see Dist. Ex. 27).

Next, on June 14, 2024, the parent notified the district of his "concerns, disagreements, and rejection" of the most recent IEP, his request for independent educational evaluations (IEEs), and his intent to unilaterally place the student at iBrain for the 2024-25 extended school year (Parent Ex. B at pp. 13-14).

On June 18, 2024, the parent electronically signed an annual enrollment contract with iBrain for the period of July 2, 2024 and ending on June 27, 2025 (Parent Ex. B at pp. 22-27).  Then, on June 20, 2024, the parent entered into a nursing service agreement with Park Avenue for the period of July 2, 2024 through June 27, 2025 (id. at pp. 34-41).  In addition, on an unknown date, the parent signed a school transportation annual service agreement with Sisters Travel for the time period of July 2, 2024 through June 27, 2025 (id. at pp. 28-33).

A. Due Process Complaint Notices

Two due process complaint notices were filed in connection with this proceeding.  In a due process complaint notice dated June 25, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 extended school year (see generally Parent Ex. A).  The parent requested pendency at iBrain as the "operative placement" for the student and direct funding of the iBrain tuition, transportation services, and nursing services for the 2023-24 school year (id. at pp. 2-3).

The parent alleged numerous procedural and substantive violations including the district's failure to: appropriately classify the student as a student with a traumatic brain injury (TBI); recommend an appropriate class size; recommend an appropriate assigned school; recommend related services or appropriate related services of a 1:1 paraprofessional and 1:1 nurse; adequately describe the student's management needs; develop sufficient present levels of performance; recommend annual goals that "matched" the student's levels of functioning; recommend appropriate transportation services including a 1:1 travel nurse; and conduct necessary evaluations of the student (Parent Ex. A at pp. 4-8).

Next, the parent alleged that iBrain was an appropriate unilateral placement as it addressed "[the student's] highly intensive management needs" in a small special education class and that equitable considerations supported an award of tuition and related services at iBrain together with special transportation (Parent Ex. A at pp. 8-9).

As relief, the parent requested an interim order of pendency at iBrain, and determinations that the student was denied a FAPE for the 2023-24 school year, that iBrain was an appropriate unilateral placement for the student, and that equitable considerations favored full funding of the student's program at iBrain, including special transportation and nursing services, for the 2023-24 school year (Parent Ex. A at pp. 9-10).  The parent requested direct funding of the iBrain tuition, transportation services, and nursing services for the 2023-24 school year (id. at p. 10).  Further, the parent requested that the CSE convene and for the district to reevaluate the student, with specific requests for educational, transition, psychological, and neuropsychological IEEs of the student (id.).

In a due process response, the district denied the material allegations contained in the due process complaint notice and attached the April 29, 2024 prior written notice together with the school location letter, consent for initial provision of services, and notification of the student's participation in alternate assessments (see Dist. Response to Due Process Compl. Not.).

In a second due process complaint notice dated July 12, 2024, the parent alleged that the district denied the student a FAPE for the 2024-25 extended school year (see generally Parent Ex. B).  At the outset, the parent requested consolidation of the matter involving the 2023-24 school year with the new due process complaint notice involving the 2024-25 school year (id. at p. 2).  Next, the parent requested pendency at iBrain with transportation and nursing services (id. at p. 3).

Similar to the June 2024 due process complaint notice, the parent alleged numerous procedural and substantive violations in the July 2024 due process complaint notice with respect to the 2024-25 school year including that the district failed to: properly classify the student; recommend an appropriate class size; recommend an appropriate assigned school; recommend appropriate related services including music therapy, 1:1 paraprofessional services, and 1:1 nurse; adequately describe the student's management needs; recommend a 1:1 travel nurse; and evaluate the student in all areas of suspected disability (Parent Ex. B at pp. 4-5, 7-10).

Similar to the first due process complaint notice, the parent asserted that iBrain was an appropriate unilateral placement and that equitable considerations favored an award of iBrain tuition, transportation services, and nursing services for the 2024-25 school year (Parent Ex. B at p. 11).  As relief, the parent requested an order of direct funding of the iBrain tuition, special transportation services, and nursing services (id. at p. 12).  Lastly, the parent requested a reevaluation of the student together with educational, transition, psychological, and neuropsychological IEEs (id.).

B. Impartial Hearing Officer Decision

After two prehearing conferences held on August 14, 2024 and Augst 27, 2024 (Aug. 14, 2024 Tr. pp. 1-21; Aug. 27, 2024 Tr. pp. 1-27), an IHO with the Office of Administrative Trials and Hearings (OATH) consolidated the two impartial hearings on the parent's June 25, 2024 and July 12, 2024 due process complaint notices into one proceeding (IHO Decision at p. 2; Aug. 27, 2024 Tr. pp. 8-9).  An impartial hearing convened   on September 16, 2024 and concluded on October 31, 2024, after six days of proceedings (Sept. 16, 2024 Tr. pp. 28-42; Oct. 1, 2024 Tr. pp. 43-263; Oct. 4, 2024 Tr. pp. 264-303; Oct. 10, 2024 Tr. pp. 304-388; Oct. 18, 2024 Tr. pp. 1-26; Oct. 31, 2024 Tr. pp. 27-81). 

In a decision dated December 17, 2024, the IHO found that the district denied the student a FAPE for the school years at issue, that the parent failed to meet his burden to prove iBrain was an appropriate unilateral placement for both school years at issue, and that equitable considerations weighed against the parent (IHO Decision at pp. 14-15, 23, 33).  In connection with transportation, the IHO found that the parent failed to demonstrate the appropriateness or implementation of the special transportation services (id. at pp. 23-24).  With respect to the nursing services, the IHO held that the parent failed to demonstrate the appropriateness of the 1:1 nursing services (id. at pp. 24-26).  Further, in connection with the nursing services, the IHO concluded that the student's medical needs could "be met by a school nurse and properly trained 1:1 paraprofessional support" (id. at p. 26).

With regard to whether the district offered the student a FAPE, although the IHO found the district's witnesses were credible, she ultimately found that the IEP was inadequate because the student had "needs in multiple areas" including needs for a 1:1 paraprofessional, school nurse services, speech-language therapy, occupational therapy (OT), and physical therapy (PT), but the CSE failed to recommend those services (IHO Decision at pp. 9-11, 14).  Furthermore, the IHO concluded that the district witnesses admitted that the IEP needed to be revised to reflect additional evaluations (id. at p. 14).

Turning to the appropriateness of iBrain, the IHO found that the testimony of the deputy director of special education (deputy director) was not credible, that he lacked "appropriate credentials" to offer testimony about the student's program at iBrain, and that he was unable to provide detailed information about the iBrain documentary evidence (IHO Decision at pp. 17-18).  The IHO further did not find the testimony of the parent to be credible and afforded his testimony "limited weight" (id. at pp. 18-19).  Also, the IHO found that the parent's evidence contained "confusing dates, typographic errors, irrelevant language and blatant contradictions" (id. at pp. 19-23).  With respect to both the 2023-24 and 2024-25 school years, the IHO found that the "weight of the evidence" did not demonstrate that the iBrain education plans "were specially designed to meet [the] [s]tudent's unique needs" (id. at pp. 20-23).

Next, the IHO discussed the student's special transportation services and found that the hearing "record [was] replete with flaws and inconsistencies"(IHO Decision at p. 23).  According to the IHO, there was no evidence about the nature of the transportation services and the qualifications of the provider for both the 2023-24 and 2024-25 school years (id. at pp. 23-24).   With respect to the transportation contract for the 2023-24 school year, the IHO found that the parent signed the contract on January 23, 2024 and the contract's effective date was October 11, 2023 and the IHO noted that the transportation contract for the 2024-25 school year lacked an execution date (id. at p. 23).  Accordingly, the IHO found that the parent failed to demonstrate the appropriateness of the special transportation provided to the student for the 2023-24 and 2024-25 school years (id. at p. 24).

Regarding nursing services, the IHO found that at iBrain, when the student's 1:1 nurse was not available, the nursing services were provided by the school nurse (IHO Decision at p. 24).  The IHO further found the "1:1 nursing order" was printed on iBrain letterhead and there was no testimony to "authenticate" the order (id. at pp. 24-25).  Additionally, the IHO reviewed the nursing contracts for both school years, noted that both contracts were executed after their effective dates, and that both contracts failed to define "1:1 Private Duty Nurse" and "1:1 Transportation" and that there was no evidence presented to explain the providers' qualification or how any nurse provided by the nursing contracts implemented the student's nursing recommendations (id. at p. 25).  The IHO concluded that the 1:1 nursing services were "beyond" the student's needs (id. at pp. 25-26).

Although the IHO found that the parent's unilateral placement and services were not appropriate, the IHO made alternative findings on equitable considerations "for the sake of completeness" (IHO Decision at pp. 26-33).  In her conclusions, the IHO found inconsistencies with respect to the contracts for iBrain, transportation services, and nursing services (id. at p. 31).  Further, the IHO found that transportation services were provided outside the terms of the contract such as transporting the student to the hospital (id.).  The IHO held that "[g]iven the multiple questions regarding documentary evidence in this case, the potential for third party collusion cannot be ruled out and is an equitable issue" (id.).  In connection with the parent's cooperation, the IHO found that because the parent had information that he did not disclose to the district and failed to inform the district when the student was placed at iBrain, the parent "obstructed the CSE process" (id. at p. 32).  Furthermore, the IHO questioned the reasonableness of the costs for the iBrain tuition and related services, transportation costs, and cost of the nursing services (id. at p. 33).  Accordingly, the IHO found that the equities did not weigh in favor of the parent and if there was a finding that the unilateral placement and services were appropriate, that equitable considerations would require a denial of all requested relief (id. at pp. 33-34).  Finally, the IHO concluded that any requested relief not discussed in the decision was denied, and any of the parent's claims not discussed were dismissed with prejudice (id. at p. 33).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that iBrain was not an appropriate unilateral placement, and that equitable considerations did not favor the parent's requests for relief.  The parent asserts that those determinations should be reversed but that the IHO correctly found that the district denied the student a FAPE for both the 2023-24 and 2024-25 school years.

The parent argues that the IHO erred in not finding that the student required a 1:1 nurse.  Second, the parent argues that the IHO erred in finding that iBrain was not an appropriate unilateral placement.  In particular, the parent asserts that the IHO incorrectly found his testimony was not credible and afforded it diminished weight.  Third, the parent claims that the IHO's finding that the transportation and nursing services were not appropriate for the student was erroneous.  The parent also argues that the IHO incorrectly found that equitable considerations did not support a claim for relief.  As relief, the parent seeks an order for the district to directly fund the costs of the student's iBrain tuition, transportation services, and nursing services in accordance with the respective contracts for said services for the 2023-24 and 2024-25 school years.

In an answer, the district denies the material allegations contained in the parent's request for review.^[6]  The district asserts that the parent failed to present witness testimony about the iBrain education plans or someone familiar with the education of the student at iBrain.  In addition, the district argues that the IHO's findings that the transportation and nursing services were not appropriate because of the lack of witness testimony and inconsistencies in the documentary evidence should be upheld.  The district also contends that based upon the parent's lack of cooperation, withholding of information, and "inconsistencies and contradictions" in the hearing record, the IHO was correct in denying any requested relief.  The district references a "cross-appeal" in several instances in its own pleading, attempting to "cross-appeal" from the favorable aspects of the IHO's decision; however, the district was not aggrieved by those aspects of the IHO's decision and, for that matter, did not allege any error by the IHO.  Accordingly, the undersigned has treated the pleading as an answer with defenses; however, the district is also cautioned to review the practice regulations in Part 279 and should not expect excusal for future failures to comply with the practice regulations in Part 279.

The parent filed a reply, denying the material allegations contained in the answer and generally restating and rearguing those arguments previously set forth in his request for review, and is thus impermissible under 8 NYCRR 279.6.

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

VI. Discussion

A. 2023-24 School Year

1. Unilateral Placement

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.  Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.  To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.  They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

a. Student's Needs

While the student's needs are not in dispute on appeal, a discussion thereof is necessary to evaluate the appropriateness of the parent's unilateral placement of the student at iBrain for the 2023-24 school year.  The hearing record includes  October 2023 and June 2024 "iBrain Report and Education Plans" that were developed during the 2023-24 school year, in which the student's areas of need and services recommended remaining relatively the same (see generally Parent Exs. F- G).^[7]

The October 11, 2023 iBrain education plan indicated that at the time it was developed the student demonstrated speech, motor, and cognitive delays (Parent Ex. F at pp. 1, 18).  The plan initially reported the student enjoyed oral feeding and received a puree diet by mouth; however, needed assessment for a gastrostomy tube (g-tube) (id. at pp. 10, 25, 28).^[8]  A February 7, 2024 update to the plan indicated the student experienced dysphagia and noted that she was reliant on a g-tube to ensure nutritional well-being (id. at pp. 33-35).  According to the October 2023 iBrain education plan, the student required total assistance with self-care activities of dressing, toileting, and grooming; used a wheelchair for mobility and required maximal support for functional mobility and navigation of all environments; and required maximum assistance for completion of all activities of daily living (ADLs) (id. at pp. 8-13).  The iBrain education plan reported that due to the student's intensive management needs she required highly individualized support within a 6:1+1 special class environment, along with the support of a 1:1 paraprofessional throughout the day and a 1:1 nurse to address her medical, physical, cognitive, and sensory needs throughout the day (Parent Ex. F at pp. 12, 56; see Parent Ex. F at pp. 30-38).

The October 2023 iBrain education plan detailed the student's present levels of performance and needs in the areas of education, speech and language/communication, oral motor/feeding, occupational and physical therapies, vision, assistive technology, conductive education, cognitive and social/emotional development, and self-care skills, as well as her management needs (see Parent Ex. F at pp. 1-32).  Additionally, the October 2023 iBrain education plan included a health care plan for the student signed, by a registered nurse, that provided information on the student's diet and medical history, as well as her medical needs related to high risk falls, skincare, aspiration, and risks related to intellectual, developmental, cognitive delays and self-care deficits (id. at pp. 33-39).  The health care plan provided for 1:1 nursing support, school nurse support when a 1:1 nurse not available, paraprofessional support, and related service support from the physical therapist, occupational therapist, and speech-language therapist (id. at pp. 33-39).

With respect to speech-language functioning, the iBrain education plan stated the student communicated through the use of vocalizations, facial expressions, and body movements, and could use single panel switches placed at the side of her head to make choices such as "more" or "stop" and to respond to questions (Parent Ex. F at pp. 1-3, 5).  As reflected in the education plan, per parent report the student communicated using different intonations of her vocalizations and also used facial expressions and crying/whining to vocalize displeasure (id. at p. 5).  The education plan also indicated the student required help from a familiar communication partner, who could narrow choices and interpret her behavior, to communicate most successfully (id.).  During formal assessment of augmentative and alternative communication (AAC), the student demonstrated limited understanding that symbols such as pictures or words represented ideas, and she did not demonstrate intention with selections during assessment, requiring maximal multimodal prompting and cueing to access and activate the appropriate symbol, switch, or icon (id. at pp. 4, 19- 20).  The iBrain education plan stated that based on a functional vision evaluation the student's use of her vision was limited to near distance and familiar materials, she was unable to track visually or horizontally with fluid motion, and she was unable to shift her gaze (Id. at pp. 16-17).  The plan stated that the student's visual acuity was unknown; however, noted that she presented with visual impairment and possible cortical visual impairment (CVI) (id. at pp. 16-18).

According to the October 2023 iBrain education plan, the student received 1:1 instruction for related services and academics (Parent Ex. F at p. 17).  The iBrain education plan indicated the student was most engaged when listening to preferred songs, nursery rhymes, and musical instruments and less engaged when watching educational videos (id.).  The iBrain education plan included academic goals that addressed the student's ability to identify letters in her name and numbers one through ten, both through the use of single panel switches and facial cues, and to greet peers using single panel switches at the sides of her head (id.).  The iBrain education plan reported that the student showed signs of satisfaction by smiling, laughing, and looking at providers and peers (id.).

Regarding the student's physical development, the October 2023 iBrain education plan indicated that the student's quality of movement was typical of a child with cerebral palsy, and reported the student displayed minimal voluntary movements (Parent Ex. F at p. 15).  that the student was able to turn her head to the right or left but, otherwise, her movements were frequently involuntary and driven by spasms, which caused her pain (Parent Ex. F at p. 15).  The student used a stroller chair for transportation between home and school and to navigate the community, and at school borrowed an iBrain wheelchair (id. at p. 24).

With regard to seizures, the iBrain education plan indicated the student had a sleep study that detected a seizure "only in the device" and did not otherwise manifest (Parent Ex. F at p. 24).  Per the iBrain education plan, the student had not experienced any seizures since the sleep study and did not take any seizure medications (see Oct. 10, 2024 Tr. p. 321; Parent Ex. F at p. 24).  The iBrain education plan stated the student had hip dysplasia that primarily affected her left side (Parent Ex. F at pp. 24, 29).  The plan noted that the student needed her own customized wheelchair for optimal positioning to facilitate mobility in school and the community, in addition to bilateral ankle-foot orthoses (AFOs) to reduce and delay the development of contractures (id. at p. 28).  The October 2023 iBrain education plan provided human, environmental, and material resources to support the student's academic, social, and physical development that included: modified materials (high contrast, tactile, etc.); extended response time; position changes to maintain energy; access to all communication devices; access to adaptive devices such as Eazyhold, slant board; objects placed against a contrasting background; opportunities to interact with peers such as greeting; 1:1 paraprofessional for all ADLs and transfers; and physical supports such as a wheelchair, AFOs, bench, firm mats, pillows, wedges, and plinths (id. at pp. 30-32).

b. iBrain Programming

The parent argues that the IHO erred in finding that he failed to meet his burden of showing that the student's placement at iBrain was appropriate.  The parent also argues that the IHO incorrectly found that the testimony of the iBrain deputy director was not reliable or credible and that he was unable to explain the discrepancies in the iBrain education plans.^[9]  The parent also disputes the finding by the IHO that iBrain lacked a remote services plan which further demonstrated that the parent failed to meet his burden.  Next, the parent argues that the iBrain "program [was] uniquely tailored" for the student's needs and that the student made progress at iBrain (Req. for Rev. ¶ 33).  The district asserts that the parent's evidence contained "confusing dates, typographic errors, irrelevant language and blatant contradictions" and there was a lack of testimonial evidence with respect to the student's instruction at iBrain (Answer ¶¶ 14-15).

The iBrain deputy director testified that the student had attended iBrain since October 2023 (Oct. 1, 2024 Tr. pp. 199-00; Parent Ex. P ¶¶ 10, 13).  Within affidavit testimony, the deputy director indicated that iBrain was a "highly specialized special education program" for students with acquired brain injuries or brain-based disorders with intensive to highly intensive management needs that required significant individualized attention and intervention on a 12-month basis and an extended school day (Parent Ex. P ¶¶ 5-6).  Further, the deputy director explained that every student who attended iBrain required a 1:1 paraprofessional to assist with ADLs and to access and benefit from the educational programming (id. ¶ 5).  The deputy director testified that iBrain provided students with services focused on improving functional skills appropriate to their cognitive, physical, and developmental levels and provided a "collaborative and multi-disciplinary approach" incorporating practices from the medical, clinical, and educational fields with instruction using the most effective strategies from evidence-based practices (id. ¶ 7).^[10]

The evidence in the hearing record showed that during a portion of the  2023-24 school year, the student attended a 6:1+1 special class at iBrain and received related services of five sessions per week of individual OT, five sessions per week of individual PT, five sessions per week of individual speech-language therapy, two individual and one group session per week of music therapy, one session per week of individual vision education services, and one session per week of individual assistive technology services, with all sessions being 60-minutes in duration (Parent Exs. F at p. 58; P ¶¶ 13-14).^[11]  Additionally, the 2023-24 iBrain education plan recommended supplementary services of a 1:1 paraprofessional and a 1:1 nurse for the 2023-24 school year on a daily, full-time basis, as well as transportation accommodations (id. at pp. 57-58).  According to the iBrain daily schedule for the 2023-24 school year, the student's day started at 8:30 a.m. with dismissal between 4:30 p.m. and 5:00 p.m.; the student received a 30-minute block of time each day referred to as "1:1 Academics" in which she was provided one-on-one academic instruction (Dist. Ex. 34; see Parent Ex. P ¶ 14).  Further, 30-minute classroom activity time blocks were scheduled throughout the week in the areas of "ADLS," class meeting, sensory time, and lunch (id.).^[12]

The 2023-24 iBrain education plan included annual goals and short-term objectives to address the student's identified needs in the areas of literacy, math, cognition, social skills, vision education, assistive technology, speech-language therapy, PT, OT, music therapy, and parent counseling and training, as well as goals for the paraprofessional in working in conjunction with the student and in consultation with the student's teachers, therapists, and nursing staff (Parent Ex. F at pp. 40-55).  Additional supports written in the student's iBrain education plan required training of school personnel in the areas of AAC, use of braces/orthotics, g-tube safety, accommodations and characteristics of CVI, direct instruction, and allergy precautions (id. at p. 59).

Within affidavit testimony, the deputy director reported the student at iBrain received assistance from a 1:1 paraprofessional and 1:1 nurse "all day, every day" with the paraprofessional assisting the student in focusing during academics and with ADLs, and a 1:1 nurse supporting the student's health and medical needs (Parent Ex. P ¶¶19, 20).  The deputy director further testified that during the 2023-24 school year the student received 1:1 academic instruction, small group instruction, and related services on a push-in/pull-out basis to enable generalization of skills in multiple environments (id. ¶¶ 13-14, 17).  The deputy director testified, in general, that the student was appropriately placed at iBrain because it provided a small, highly structured environment that allowed the student to receive meaningful academic benefits and make social/emotional and academic progress (see generally Parent Exs. F-G; K-M; Parent Ex. P ¶ 22).^[13]

For the 2023-24 school year, the evidence in the hearing record sufficiently described the elements of the iBrain program, which aligned with the student's needs as described in the iBrain education plan, and therefore, contrary to the finding of the IHO, I find that the student's iBrain program was appropriate to meet her needs for the 2023-24 school year.

2. Equitable Considerations

Next, I shall consider whether based upon the hearing record, equitable considerations favor the parent's requested relief for the 2023-24 school year.

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.  Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).  With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

a. Excessive Services - Nursing Services

Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]).  An IHO may consider evidence regarding the reasonableness of the costs of the program or whether any segregable costs exceeded the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100).  More specifically, while parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA.  To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).  Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act.  Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the [the predecessor statute to the IDEA] requires"]).

With regard to the degree to which the services are segregable, the authority relating to excessive services applies most frequently when the services are delivered in a separate location or by a provider not affiliated with the main tuition-based program and/or where the costs of the services are itemized or separately billed (see, e.g., Application of a Student with a Disability, 23-130; Application of a Student with a Disability, Appeal No. 21-086; Application of a Student with a Disability, Appeal No. 14-071).

Here, the parent argues that the IHO erred in failing to conclude that the student required 1:1 nursing services despite the physician's order for a 1:1 nurse during school and transportation.  The district asserts that the IHO was correct in not affording any weight to the physician's order for 1:1 nursing because it was on iBrain letterhead and there was a lack of testimony regarding the implementation of the 1:1 nursing services.

The iBrain education plan included an individualized health care plan signed by the student's school nurse on October 11, 2023, at that time, the student's diet consisted of pureed and thickened liquids (Parent Ex. F at p. 33; see Oct. 1, 2024 Tr. p. 250; Oct. 4, 2024 Tr. p. 287).  As noted above, the health care plan was modified on February 7, 2024 to indicate the student was dependent on a g-tube for nutrition (id.).  At the hearing, the iBrain deputy director testified that the student was not recommended for 1:1 nursing services prior to modification to her individualized health care plan (Oct. 1, 2024 Tr. p. 253; Parent Ex. F at p. 35).  The deputy director reported that the student received 1:1 nursing services between February and March 2024; however, he did not recall when the student returned to school following her gastrostomy surgery, or whether it was prior to March 26, 2024 (Oct. 1, 2024 Tr. pp. 253-55; see generally Parent Exs. N at p. 2; O at pp. 1, 8-9).

According to the October 2023 iBrain education plan, as included in the student's individualized health care plan, the student needed a 1:1 nurse in addition to a paraprofessional to provide contact guard safety for the student and supportive and safe transfers when needed, report any changes to the student's physical status, in addition to perineal care and skin care (Parent Ex. F at pp. 33-35).  Further, the 1:1 nurse would provide care and nutrition via gastrostomy, which included daily checks for placement, venting as needed, provision of hydration and nutrition, daily dressing changes and gastrostomy care, as well as monitoring the skin for signs of breakdown and infection (id. at p. 35).  In addition, the 1:1 nurse would provide emergency care to the student if the gastrostomy was displaced or accidentally dislodged (id. at p. 36).  Based on the student's management needs, the October 2023 iBrain education plan indicated the 1:1 nurse would provide  suctioning due to the student being consistently congested (id. at pp. 31-32).

In relation to the student's need for 1:1 nursing services, the hearing record includes a March 18, 2024 physician's order for 1:1 nursing services signed by the student's physician (Parent Ex. N at pp. 1-2; see Oct. 1, 2024 Tr. p. 256).  This document labeled "[p]hysician's [o]rder for 1:1 [n]urse" was completed on iBrain letterhead and signed by the student's physician on March 18, 2024 with a notation that the order became effective that same date (Parent Ex. N at p. 2). As justification for 1:1 nursing services, the physician's order  included statements that the student was "nonverbal and non-ambulatory with full dependence on a nurse" to monitor, prepare, and disconnect the student's g-tube; provide g-tube feedings twice daily and insure proper positioning of the student during feeding to prevent aspiration (id.).  With respect to transportation, the physician's order stated that "monitoring of the [g]astrostomy [wa]s needed since it c[ould] become dislodged" during the 30-minute drive (id.).

According to testimony in the hearing record, the student's need for 1:1 nursing services commenced at the time her gastrostomy took place in February 2024 (Oct. 1, 2024 Tr. p. 253; Oct. 4, 2024 Tr. p. 287).  A notation included in the copy of the October 2023 iBrain individualized health care plan included in the hearing record indicated the plan was updated on February 7, 2024 to reflect the student's gastrostomy (Parent Ex. F at p. 35).  The role of "the 1:1 nurse" was referenced throughout the individualized health care plan; however, because the document offered by the parent into evidence was altered over the course of the student's attendance at iBrain during the 2023-24 school year, it is unclear if this language appeared in the original plan created in October 2023 or whether it was added as part of the update that took place on February 7, 2024 (id. at pp. 33-36).  In any event, iBrain did not seek a 1:1 nurse for the student until March 2024 and in each instance in which the updated individualized health care plan referenced a g-tube duty to be carried out by "the 1:1 nurse" it also stated "and the school nurse when the 1:1 [nurse] is not available" (id. at pp. 35-36).  Therefore, while the justification for a full time 1:1 nurse was based on the student's gastrostomy, the iBrain health care plan indicated that a school nurse could perform the required g-tube duties when the 1:1 nurse was not available.  The hearing record does not indicate why the 1:1 nurse would not  be available or how frequently that may have occurred.

In addition, the hearing record included testimony from parent witnesses, in contradiction to the iBrain education plan, that the student did not need nursing services for seizures or emergency medications/situations (Oct. 1, 2024 Tr. pp. 257-58; Oct. 10, 2024 Tr. pp. 320-22; Parent Ex. F at pp. 12, 33).  The iBrain education plan first mentions a 1:1 nurse in the equipment needs and supports section reporting that the student "require[d] a 1:1 nurse to administer emergency medications, aid in safety, and monitor for seizure activity" (Parent Ex. F at p. 12).  Here, the testimony of the iBrain deputy director and parent indicated that the student did not require a 1:1 nurse for seizure monitoring, have a history of seizures, or ever report seizure occurrences (Oct. 1, 2024 Tr. p. 257; Oct. 10, 2024 Tr. pp. 320-21).  In relation to medication, the deputy director testified that the student required albuterol due to respiratory issues; however, not consistently and only on an emergency basis or as needed (Oct. 1, 2024 Tr. pp. 257-58).  Contrary to this, the parent testified that the student had the medicine "baclofen" at home and available at school "to calm her down;" and per parent report, the student used this medicine at home once in two months as she had a hard time falling asleep; however, she never used it at school (Oct. 10, 2024 Tr. pp. 321-22).  Per the October 2023 iBrain education plan, the student received 2 mL of Baclofen daily at school (Parent Ex. F at p. 33).

The district contends that the iBrain education plan allowed for the iBrain school nurse to be in charge of the student's g-tube, feeding, and related care when the 1:1 nurse is not available.  As noted above, a review of the October 2023 education plan shows that it specifically stated "the 1:1 nurse and the school nurse when the 1:1 is not available will provide care and nutrition via the gastrostomy during the period of services which will include but is not limited to daily checks for gastrostomy placement, venting as needed, provision of hydration and nutrition as ordered by the physician, [and] gastrostomy care including daily dressing changes and monitoring for signs of skin breakdown and infection"  (Parent Ex. F at p. 35).  Further, the October 2023 iBrain education plan provided that "the school nurse when the 1:1 nurse is not available will administer medications, nutrition and flushes via the gastrostomy as ordered by the physician during the period of services" (id. at pp. 35-36).  Moreover, the iBrain plan reported again that "the school nurse when the 1:1 nurse is not available will provide emergency care to the student during the period of service if the gastrostomy is displaced or accidentally dislodged as per the MD order" (id. at p. 36).

The parent's evidence is unclear regarding the date the student returned to school following her gastrostomy surgery or whether the student attended school in-person or remotely; however, the parent testified the student's surgery occurred in February and that she missed only one to two days of school (Oct. 1 2024, Tr. pp. 254-55; Oct. 4, 2024 Tr. pp. 287-88; Oct. 10, 2024 Tr. pp. 332-33).  The deputy director testified generally that the student received 1:1 nursing services at iBrain "either between February and March" (Oct. 1, 2024 Tr. p. 253).  He also testified that between the date of her g-tube surgery and her return to school the student was marked as having an excused absence; however, he did not recall the length of that period of time (Oct. 1, 2024 Tr. pp. 205-06, 254-55).^[14]  Progress report documentation supported the parent testimony that the student's surgery occurred in February 2024 (Parent Ex. L at p. 8).  Specifically, with regard to OT, the April 2024 progress report indicated the student at the beginning of the quarter tolerated prone position; however, "[d]ue to [g-]tube insertion in mid-February 2024, [the student] ha[d] been unable to work on increasing tolerance of prone position due to the surgical site" (id. at pp. 1, 8).

Although the deputy director did not clearly testify as to when the student returned to school, or when 1:1 nursing services started, per documentation within the hearing record, 1:1 nursing services commenced in March 2024 (Parent Exs. N-O).  Specifically, the physician's order was signed on March 18, 2024 and the 1:1 nursing services contract stated that the 1:1 nursing services were effective March 26 through June 21, 2024 (see Parent Ex. N; Parent Ex. O at p. 1).^[15]  As the student attended iBrain following surgery in February 2024 and the contracted 1:1 nursing services began on March 26, 2024, approximately over a month after her surgery, it appears the student may have attended iBrain without a 1:1 nurse for a period of time following surgery (Parent Ex. F at pp. 35-36).  Nevertheless, the iBrain education plan explained that the school nurse could provide care and nutrition via gastrostomy, administer medications, nutrition and flushes via gastrostomy, and provide emergency care in case of gastrostomy displacement or dislodgement (id.).

Based upon the foregoing, does not convincingly show that 1:1 nursing services, while beneficial, were more than what was needed to allow the student to participate in the iBrain programming, and that they were beyond what the school district was required to fund in conjunction with the unilateral placement of the student.  Accordingly, I find no basis to disturb the IHO's finding that the 1:1 nursing services were "beyond [the] [s]tudent's needs" and therefore, exceeded the requirements to provide a FAPE (IHO Decision at p. 25).

b. Discrepancies/Inconsistencies in Hearing Record

In discussing the appropriateness of iBrain, the IHO found that certain discrepancies and inconsistencies in the hearing record contributed to the parent's failure to meet his burden of proof (IHO Decision at pp. 18-19, 22-23).  However, I find that this argument does not go to the appropriateness of iBrain, but such discrepancies and inconsistencies can be considered in determining whether equitable considerations weigh in favor of the parent.

Here, in relation to the 2023-24 program, documentary evidence and testimony from the parent and deputy director at iBrain indicated the student started attending iBrain on October 11, 2023; however, for the 2023-24 school year, the dated on which the parents signed related contracts varied.  The iBrain enrollment contract was signed on March 20, 2024; the transportation contract on January 23, 2024; and the nursing services contract on March 26, 2024 (see Parent Exs. D-E; O).

During direct testimony, the deputy director stated the student was reported in attendance at iBrain in October 2023 and received related services in October 2023 as of the first day of school (Oct. 1, 2024 Tr. p. 209).^[16]  The deputy director testified that the October 2023 iBrain education plan must have had typos when it noted that the student "began school in December 2023" as reported within the present levels of performance in areas of related services such as OT, and PT, as well as graphs with start dates in December 2023 and January, rather than a start date in October 2023 (Oct. 1, 2024 Tr. pp. 237-39; Parent Ex. F at pp. 23, 25-26, 28; Parent Ex. P ¶¶ 10, 13).  The parent testified that the student was evaluated by iBrain in September 2023 and "probably late October or November" 2023 iBrain advised the parent it could accept the student; the parent later testified her first day was October 11, 2023 (Oct. 4, 2024 Tr. pp. 287-88; Oct. 10, 2024 Tr. pp. 310, 343, 354, 368).  The parent was not exactly sure when the related services began but believed they started two weeks after she began attending iBrain (Oct. 10, 2024 Tr. pp. 348-49, 351-52).^[17]

Furthermore, in addition to the iBrain education plan, the hearing record includes iBrain progress reports that included similar information regarding the start of related services for the student's 2023-24 school year (see generally Parent Exs. K-L).  With regard to music therapy, OT, PT, and vision education services, the January 2024 second quarter progress report stated "the student ha[d] just started at the school" with the OT and music progress reports stating that goals would be worked on/addressed next quarter, the PT progress report stating that the student "began school less than a month ago" and the vision provider reporting that "[d]ue to her recent enrollment there has been too little data collected" (Parent Ex. K at pp. 5-13).  The January 2024 second quarter progress report did not include any quarterly progress information for speech-language therapy (see generally Parent Ex. K).  In addition, the progress report indicated the goals related to literacy, math and social skills, were "[n]ot yet introduced" (id. at pp. 1-3).  Further, the April 2024 quarterly progress report for the third quarter noted in the area of OT that the student was "just beginning school" and "adapting to being in school [five] days a week" (Parent Ex. L at p. 9).  Likewise, the April 2024 third quarter progress report stated in the area of PT that the student "ha[d] begun her therapy sessions a few months ago" (id. at p. 10).

Further confusing the issue of when the student began attending iBrain during the 2023-24 school year, the parent signed the iBrain enrollment contract on March 20, 2024, which indicated that the student's enrollment was from October 11, 2023 through June 21, 2024 (see Parent Ex. D).  The transportation contract with Sisters Travel was signed by the parent on January 23, 2024, with an effective date of October 11, 2023 through June 30, 2024, and as previously stated the nursing services were set to begin on March 26, 2024 (see Parent Exs. E; O).

Although the deputy director left open the possibility that the student could have received home services, his testimony that the student received services immediately in October 2023, whether at home, or at school is in direct contradiction to multiple iBrain documents in evidence with the iBrain plan reporting the student began school/services in December 2023, quarterlies reporting the student had just started school as of the January 5, 2024 second quarter report, and the April 2024 third quarter progress report noting in a couple instances that the student was only in school a few months as of the April 2024 report date (compare Oct. 1, 2024 Tr. at pp. 209, 237-38, with Parent Exs. F at pp. 23, 25-26, 28; G at pp. 21, 26; K at pp. 4-13; L at pp. 9-10).  The record is not even clear when the student received academic support with all goals not yet introduced as of the January 5, 2024 second quarter report (Parent Ex. K at pp. 1-3).  In fact, with respect to academics the April 2024 progress report stated as "[the student] [wa]s also new to the school" the providers were still working to understand her preferred method of communication (Parent Ex. L at p. 1).  Not until the April 2024 third quarter progress report did academic and related service providers  begin noting progress  of goals with updates that reported either no progress, inconsistent progress, or slow steady progress (see Parent Ex. L at pp. 2-16).^[18],[19]

Based upon the foregoing, the fails to convincingly describe when the student actually began attending iBrain for the 2023-24 school year, and further fails to indicate if whether the student was physically present in iBrain school building, or receiving services remotely, and when the student started receiving related services, which constituted the most significant component of the student's program at iBrain.  For the charges agreed to by the parent, consisting of $212,056.38 for iBrain, $94,400 for  Sisters Travel, and $127,333 for Park Avenue, the parent should have been able to produce accurate records from the providers that convincingly detailed exactly when such services were provided; however, the evidence depicted spotty or absent recordkeeping by the providers at best, as well as contradictions between the parent, the deputy director of Brain, and the documentary evidence.  The IHO's credibility determinations as they related to the 2023-24 school year were firmly rooted in the evidentiary record and will not be disturbed.  The effects of those credibility determinations is further discussed below.

c. Ten-Day Notice

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).  This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).  Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

The Second Circuit recently emphasized that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" (Bd. of Educ. of Yorktown Cent. School Dist., 990 F.3d, 152,  171 [2d Cir. 2021]; see 20 U.S.C. § 1412[a][10][C][iii][I]; 34 CFR 300.148[d][1]; Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004] [noting that the statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools"]).  During the ten-day notice period, a district "may seek to correct the IEP" after it has been given notice of the parents' objections and "may defend against a claim for tuition reimbursement by pointing out that parents did not cooperate in the revision of the IEP, or that the corrected IEP, if accepted by the parents, would have provided the child with a FAPE" (Bd. of Educ. of Yorktown Cent. School Dist., 990 F.3d at 171).

Here, despite the fact that the parent and district had been communicating since October 4, 2024, the parent first notified the district that the student was attending iBrain on February 15, 2024 (Oct. 18, 2024 Tr. pp. 11, 14-15, 18; Dist. Ex. 28 at p. 2).  Thereafter, the parent provided a ten-day notice letter for the 2023-24 school year on March 20, 2024, that stated the parent disagreed with the October 2023 IEP and intended to enroll the student at iBrain for the 2023-24 school year (Parent Ex. C).  As such, the parent did not formally inform the district of his disagreement with the October 2023 IEP and the student's attendance at iBrain until March 2024, although testimony from the deputy director of iBrain and the student's father indicated the student had attended iBrain since October 2023 (see Parent Ex. C; Parent Exs. F at p. 1; P ¶ 10; Dist. Ex. 33).

Overall, while the parent's failure to provide a ten-day notice until March 2024 alone may not have warranted a complete denial of relief, the denial of relief is not unreasonable when this factor is considered in conjunction with several other equitable considerations discussed by the IHO in her decision.  In particular, the IHO made credibility findings regarding the parent and iBrain director's testimony concerning the student's attendance during the 2023-24 school year (IHO Decision at pp. 15, 17, 19).  In discussing equitable considerations, the IHO specifically noted that she considered the "conflicting documentary evidence and testimony regarding [the] [s]tudent's start date at [iBrain]" when in fact the student began attending iBrain around October 11, 2023 and the parent "withheld" such information from the district until February 15, 2024 (id. at p. 31). Next, with respect to cooperation of the parent, the IHO found that the parent had "extensive and useful evaluative material from [iBrain]" at the time of the October 2023 CSE meeting but did not provide that information to the CSE (id.).  The IHO recounted the testimony of the iBrain deputy director that stated the evaluations conducted of the student by iBrain in September 2023 were contained in the October 2023 iBrain education plan and that plan was provided to the parent when it was first developed (id. at pp. 31-32).  The IHO also found that the parent did not provide a feeding and swallow study to the CSE that he obtained for the student (id. at p. 32).  Further, the IHO found that the parent led the district to believe that the student was not attending any school when in fact the student was enrolled at iBrain (id.).  Based upon the foregoing, the IHO concluded that the parent "obstructed" the CSE process in this matter (id.).

As noted by the IHO and as discussed above, the lack of credible information regarding the student's attendance during the 2023-24 school year is troubling.  It becomes even more concerning when compared to the documentary evidence in the record, specifically the iBrain education plan and two progress reports from iBrain dated January 5, 2024 and April 12, 2024, respectively (see Parent Exs. F; K-L).  Both progress reports note, repeatedly and consistently, that the goals and benchmarks had not yet been introduced as of January 2024 and that the student had just started school, and the April 2024 progress note mentioned numerous absences (see id.).

The IHO also noted that while the transportation contract had a term from October 11, 2023 until June 30, 2024 for the 2023-24 school year, the contract was not signed by the parent until January 23, 2024, after the school year was halfway completed (IHO Decision at pp. 15, 23; see Parent Ex. E).  As further noted by the IHO, the hearing record contains inconsistencies with respect to the student's transportation arrangements including the home pick up times and drop off times after the iBrain school day had already started and providing transportation unrelated to school (IHO Decision at pp. 23-24).  Accordingly, I find that the hearing record is unclear as to when the transportation services began, when the student was participating in remote services, and when the student was absent, and the parent entering into a contract after the school year was partially completed weighs heavily against granting the requested relief.

Finally, while any single factor, on its own, may not have warranted the significant result of denying all funding for the student's attendance at iBrain along with the contracted costs of the student's transportation, I find that, when all of the factors discussed above are viewed together, the IHO appropriately found that equitable considerations weighed against awarding any of the requested relief for the 2023-24 school year.

B. 2024-25 School Year – Unilateral Placement

1. Student's Needs

The June 2024 iBrain education plan, contained much of the same similar present levels of performance and assessment information as the initial October 2023 education plan (compare generally Parent Ex. F, with Parent Ex. G).  The student's present levels related to cognition, language and social skills, pragmatics/social language, and needed adaptive equipment carried over, as well as oral motor feeding information that indicated the student "currently feeds orally, all puree texture, seated upright" (compare generally Parent Ex. F at pp. 1-6, with Parent Ex. G at pp. 1-6; compare Parent Ex. F at p. 6, with Parent Ex. G at p. 6).  In the area of speech-language development, the June 2024 iBrain education plan carried over speech-language goals, and classroom social participation information (compare Parent Ex. F at pp. 7-8, with Parent Ex. G at pp. 6-8).

The June 2024 iBrain education plan reported updated information with regard to the student's present level of functional performance in self-care skills that indicated the student was "NPO" as she recently underwent placement of g-tube and tolerated tube feeds well (compare Parent Ex. G at p. 9, with Parent Ex. F at p. 10).^[20]  Information as related to fine motor skills continued to report the student required total assistance to use her hands and upper extremities (compare Parent Ex. F at p. 11, with Parent Ex. G at p. 10).  As related to equipment needs and supports, the June 2024 carried over information related to the student's needs for a 1:1 paraprofessional and a 1:1 nurse,  the student awaiting her own fitted wheelchair since December 2023, sensory processing and behavior testing information, quest maps assessment information, gross motor assessment dated January 2024, as well as present levels of visual functioning, academics, and assistive technology (compare Parent Ex. F at pp. 12-18, with Parent Ex. G at pp. 11-17).  The June 2024 iBrain education plan continued to carryover formal AAC assessment information that incorrectly reported information with another student's name (compare Parent Exs. F at pp. 18-19, with Parent Ex. G at pp. 17-18).  Further, a considerable amount of the present levels of speech information was carried over, with some updated OT information, and charting of goals updated (compare Parent Ex. F at pp. 20-24; with Parent Ex. G at pp. 19-22).  Present levels of PT were carried over to the June 2024 iBrain education plan, with charts not updated, and the plan continued to state that the student was fed pureed food by mouth (compare Parent Ex. F at pp. 24-29, with Parent Ex. G at pp. 22-27).  Further, the June 2024 iBrain education plan provided much of the same information for the student's management needs, health care plan, and goals as the October 2023 iBrain education plan, with an additional oral-motor goal in the area of speech-language development (compare Parent Ex. F at pp. 30-56, with Parent Ex. G at pp. 28-53).

The June 2024 iBrain education plan included an individual health care plan for the student that remained relatively unchanged from the October 2023 iBrain individual health care plan related to the student's feeding and gastrostomy needs, although added evaluative information in relation to the student's "gastrostomy" in monitoring and reporting changes to the student's health status (compare Parent Ex. G at pp. 30-33, with Parent Ex. F at pp. 33-36).  Of note, the updated health care plan did not report the student's status as NPO, and rather carried over from the previous plan the student's diet of pureed/thickened liquid, nectar consistency (see Parent Ex. G at p. 30; compare Parent Ex. G at p. 30, with Parent Ex. F at p. 33).

2. iBrain Program

For the 2024-25 school year, the parent relied on affidavit and direct testimony from the iBrain deputy director, as well as an updated iBrain education plan dated June 13, 2024, and a progress report dated July 5, 2024 to prove the appropriateness of iBrain as a unilateral placement for the student (see Parent Exs. G; M; P).   The hearing record included the student's schedule for the 2024-25 school year and attendance for the extended school year for the months of July through August 2024 (Dist. Exs. 36; 37).

The iBrain deputy director testified that the student continued to attend iBrain for the 2024-25 school year since initially starting in October 2023 (Oct. 1, 2024 Tr. p. 199; Parent Ex. P ¶¶ 10, 15).  The hearing record provided that for the 2024-25 school year, the student continued to attend a 6:1+1 special class, with related services remaining at the same recommended levels in OT, PT, speech-language therapy, assistive technology, and music therapy, and with vision education services increasing to two sessions per week from the previous recommendation of one time per week (compare Parent Ex. B at pp. 56-60, with Parent Ex. G at pp. 53-56; P ¶ 15).^[21]  The June 2024 iBrain education plan continued to recommend parent counseling and training one time per month for 60-minute sessions and supplementary services of a 1:1 paraprofessional and a 1:1 nurse for the 2024-25 school year on a daily, full-time basis, as well as transportation accommodations (Parent Ex. G at pp. 54-55).  The hearing record provided affidavit testimony from the deputy director at iBrain that the student received assistance from a 1:1 paraprofessional, and a 1:1 nurse all day, every day, as well as transportation accommodations, in addition to testimony that the student was appropriately placed at iBrain for the 2024-25 school year (Parent Ex. P ¶¶ 19-22).

Here, the record is not developed regarding the student's participation in the 2024-25 school year due to the timing of the impartial hearing proceedings which began around the start of the 2024-25 school year; however, the hearing record includes  a quarterly progress report dated July 5, 2024 (see Parent Ex. M).  It is not clear the extent of the progress recorded during the extended school year with the fourth quarter report dated July 5, 2024 and the extended school year attendance report indicating the start of the 2024-25 school year as July 2, 2024; however, nevertheless, the student was reported as making progress in the fourth quarter report (see Parent Ex. M; Dist. Ex. 36).  The iBrain deputy director also included a general statement of progress for the 2024-25 school year, that the student's placement in a small structured environment that could be adapted to her physical, cognitive and social needs allowed her to make meaningful academic and social/emotional progress, as well as progress in her related service goals (Parent Ex. P ¶¶ 22-23).

Here again, for the 2024-25 school year, while the hearing record is limited to an iBrain education plan dated June 2024, and a progress report completed a few days into the student's 2024-25 school year, the program elements at iBrain align with the student's needs and report some progress across related service areas at the start of the 2024-25 extended school year (see generally Parent Exs. G; M).  Accordingly, and contrary to the IHO's decision, I find that the student's 2024-25 iBrain program was appropriate to meet the student's needs.

3. Equitable Considerations

Unlike the 2023-24 school year, the hearing record does not include contradictory information regarding the student's start date at iBrain for the 2024-25 school year (see generally Parent Ex. M; Dist. Ex. 36).  Specifically, although some of the progress reports indicated goals not yet introduced, no progress demonstrated, or inconsistent progress, the July 5, 2024 progress report does not indicate the lack of progress due to non-attendance or inconsistent attendance and rather denotes progress as related to academics, struggles with eye gaze, or maintaining attention (see Parent Ex. M).  Contracts for iBrain enrollment and nursing services for the 2024-25 school year were signed by both parties on June 25, 2024, and June 20, 2024, respectively (see Parent Ex. B at pp. 22-27, 34-41).  Further, the parent provided a ten-day notice letter for the 2024-25 school year on June 14, 2024, that stated he disagreed with the district's recommended program and would re-enroll the student at iBrain (id. at pp. 13-14).

The record, although limited for the 2024-25 school year, provided documentary evidence consistent with affidavit testimony of the iBrain deputy director related to the program and services as provided to the student for the 2024-25 school year (compare Parent Exs. G at pp. 1, 54-56; M; with Parent Ex. P ¶¶15-16, 19-20, 22-23).  As such, here I find that for the 2024-25 school year, equitable considerations favor the parent with respect to iBrain tuition.

In connection with 1:1 nursing services for the 2024-25 school year, the June 2024 iBrain education plan was similar to the October 2023 iBrain education plan.  In particular, the student's June 2024 iBrain individualized health care plan again noted that the student needed  1:1 nursing services in addition to 1:1 paraprofessional support to provide contact guard safety for the student and supportive and safe transfers when needed, report any changes to the student's physical status, and provide perineal care and skin care (Parent Ex. G at pp. 30-32).  Also, as detailed in the individualized health care plan, the 1:1 nurse would provide the student with nutrition via g-tube and g-tube care, which included daily checks for placement, venting as needed, hydration and nutrition, and daily dressing changes, as well as skin monitoring for signs of breakdown and infection (id. at pp. 32-33).  The iBrain education plan noted that the 1:1 nurse would provide emergency care to the student if the g-tube was displaced or accidentally dislodged (id. at p. 33).  With regard to the student's management needs, the June 2024 iBrain education plan management further indicated the duties of the 1:1 nurse included suctioning the student being and monitoring the student's ventilation, vital signs, and secretions (id. at pp. 29-30).  Similar to the June 2024 iBrain individualized health care plan, the June 2024 plan continued to note that  the student's g-tube care would be performed by the 1:1 nurse "and the school nurse when the 1:1 [wa]s not available" (id. at pp. 32-33).

a. Excessive Services – Nursing

Given that the description of the student's nursing needs in the June 2024 iBrain plan were essentially unchanged compared to those described in the October 2023 iBrain plan, and that the June 2024 plan also indicated the school nurse could provide the student's necessary medical care if the 1:1 nurse was not available, I find that the fulltime 1:1 nursing services continued to be excessive and beyond those required to address the student's educational needs for the 2024-25 school year (see L.K., 674 Fed. App'x at 101; Parent Ex. G at pp. 32-33).

b. Excessive Services – Transportation

With respect to transportation services for the 2024-25 school year, the parent signed an undated transportation agreement with Sisters Travel for the period of July 2, 2024 through June 27, 2025 (Parent Ex. B at pp. 28-33).  The June 2024 iBrain education plan included transportation recommendations that provided for supervision of a nurse, and vehicle/equipment needs of air-conditioning and lift-bus/wheelchair ramp, and the accommodation for limited time travel of 60 minutes (Parent Ex. G at p. 54).  The 2024 iBrain education plan added the equipment need for a regular size wheelchair (id.).

However, the hearing record also contained discrepancies as to when the student was picked up at home and dropped off at iBrain which was after the school day began (October 4, 2024 Tr. p. 296; October 10, 2024 Tr. p. 346; Dist. Ex. 37).  Further, as noted by the IHO, the parent testified that the student used transportation to and from the hospital on weekdays (IHO Decision at pp. 24, 31; Oct. 10, 2024 Tr. pp. 334-35).  In particular, the parent testified, "[w]e were instructed that we are paying for the services regardless.  So on the days when [the student] needed to get to and from the hospital, we can use the service" (Oct. 10, 2024 Tr. p. 335).  The parent testified that he did not sign any additional contract with the transportation service regarding trips to and from the hospital and acknowledged that the signed contract did not include trips to and from the hospital (Oct. 10, 2024 Tr. pp. 339-40).

Although the student required transportation services to and from iBrain for the 2024-25 school year, I find that the arrangement that the parent obtained was also supporting services for medical needs that were not tethered to the student's special education services. The parent's request for full reimbursement from the district is not reasonable relief required under the IDEA under these circumstances described in the evidentiary record.  Accordingly, based upon equitable factors I find that the transportation relief for the 2024-25 school year should be reduced by 20 percent to account for the fact that the transportation from Sisters was used to support medical needs that were beyond trips needed to support the student in accessing the educational environment.  Accordingly, the district is correct that the services obtained from Sisters Travel were excessive in what was necessary to provide a FAPE to the student.

VII. Conclusion

The evidence in the hearing record demonstrates that contrary to the IHO's finding, iBrain was an appropriate unilateral placement for the student for the 2023-24 school year, however, the evidence regarding equitable considerations does not support any of the parent's requested relief for the 2023-24 school year.  For the 2024-25 school year, I also find that the hearing record supports a finding that iBrain was an appropriate unilateral placement for the student and equitable considerations favored an award of iBrain tuition and related services per the enrollment contract.  Further, I find that the transportation services from Sisters Travel were appropriate for the 2024-25 school year, but the evidence leads to the conclusion that equitable considerations do not fully weigh in favor of the parent's request for transportation costs, which must be reduced. Lastly, the evidence does not support a need for 1:1 nursing services from Park Avenue for either of the school years at issue due to the excessiveness of said services as described above.

I have considered the parties' remaining contentions and find them unnecessary to address given the ultimate decision above.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated December 17, 2024, is modified by reversing those portions which found that iBrain was not an appropriate unilateral placement for the 2023-24 and 2024-25 school years; and

IT IS FURTHER ORDERED that the IHO's decision, dated December 17, 2024, is modified by reversing those portions which found that equitable considerations weighed against the parent for the 2024-25 school year; and

IT IS FURTHER ORDERED that the IHO's decision, dated December 17, 2024, is modified by reversing those portions which found that the transportation services were not appropriate for the 2024-25 school year; and

IT IS FURTHER ORDERED that the district shall fund the iBrain tuition and related services per the iBrain annual enrollment contract for the 2024-25 school year; and

IT IS FURTHER ORDERED that the district shall fund the transportation costs per the school transportation annual service agreement with Sisters Travel for the 2024-25 school year, reduced by 20 percent.

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Footnotes

[1] The student did not attend any school program prior to the 2023-24 school year (Dist. Ex. 19 at p. 1).

[2] A social history interview was conducted with the parent prior to the October 2023 CSE meeting (see Dist. Exs. 20; 28 at p. 5).

[3] Although the IEP states that the meeting was on October 17, 2023, the meeting was rescheduled and held on October 20, 2023 (Dist. Exs. 28 at pp. 5-7; 30 ¶¶ 7-8).

[4] The hearing record contains multiple duplicative exhibits.  For purposes of this decision, only parent exhibits are cited in instances where both a parent and district exhibit are identical in content.  The IHO is reminded that it is her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).

[5] iBrain has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).

[6] The district has not appealed from the IHO's determinations that it failed to offer the student a FAPE for the 2023-24 and 2024-25 school years.  Accordingly, this finding has become final and binding on the parties and will not be further discussed (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

[7] The iBrain deputy director testified that iBrain education plans are updated four times per year with the October 11, 2023 and June 13, 2024 education plans also being updated in January and April (Oct. 1, 2024 Tr. p. 202).

[8] According to the October 2023 iBrain education plan, when the student's mother fed her yogurt with a metal spoon while she was laying at a 45-degree angle in her stroller,  the student coughed several times and tended to have food remaining in her oral cavity when presented with another spoonful (Parent Ex. F at p. 6).

[9] Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).

[10] While the deputy director refers to the iBrain education plan as an "IEP," and the iBrain education plan document contains elements similar to a public school IEP, it bears noting that private unilateral placements do not have the same statutory and regulatory obligation as the district to develop an IEP for a student (see Carter, 510 U.S. at 13-14).

[11] The October 2023 iBrain education plan recommend parent counseling and training one time per month for 60-minute sessions (Parent Ex. F at p. 58).

[12] The parent testified that the transportation service picked up the student at 9:00 a.m. and the student generally arrived at school at 9:45 a.m. and sometimes closer to 10:00 a.m. (Oct. 4, 2024 Tr. p. 296; Oct. 10, 2024 Tr. p. 346).

[13] While a student's progress is not dispositive of the appropriateness of a unilateral placement, a finding of some progress is, nevertheless, a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]; Lexington County Sch. Dist. One v. Frazier, 2011 WL 4435690, at *11 [D.S.C. Sept. 22, 2011] [holding that "evidence of actual progress is also a relevant factor to a determination of whether a parental placement was reasonably calculated to confer some educational benefit"]). It stands to reason that the converse must also be true, i.e., that a lack of evidence of progress is not dispositive of the appropriateness of a unilateral placement.

[14] The iBrain deputy director confirmed that the student's attendance was marked as "Y" every day during the 2023-24 school year (Oc. 1, 2024 Tr. p. 204). According to the iBrain attendance record "Y" signified "present or excused absence or home services" (Parent Ex. 33).

[15] This contract delineated "provision of 1:1 [p]rivate [d]uty [n]ursing services during the school day and/or a 1:1 [t]ransportation [n]urse" (Parent Ex. O at p. 1).  The contract did not include the duties of the nurse, however included that the 1:1 private duty nurse would be provided for the student during school hours (id. at p. 2).

[16] The iBrain deputy director testified that he knew the related services began in October 2023 because "I observed it" (Oct. 1, 2024 Tr. p. 209).  However, when asked if the student attended in person or remote, the deputy director testified "I don't recall" and in relation to observing the student during sessions he added "I observed whether she was in person or remote" (Oct. 1, 2024 Tr. p. 210).

[17] The parent reported that once the student started therapy the parents were notified the student became very tired and slept a lot afterwards; therefore, iBrain gave her time to adjust to the school schedule (Oct. 10 2024 Tr. p. 349).  He indicated that once the student got used to the schedule other therapies were added (id.).  The parent further testified that he did not believe the student started school in December 2023 but started earlier (Oct. 10, 2024 Tr. pp. 351-52).

[18] Although the April 2024 third quarter progress report identified some academic and related service goals as not yet introduced, provided progress updates for the majority of goals (see Parent Ex. L).

[19] In relation to identification of letters in her name, the April 2024 third quarter progress report stated that the student progressed inconsistently due to missing a significant amount of school days for medical reasons such as getting a g-tube or being sick (Parent Ex. L at p. 1).

[20] Although not indicated on the iBrain education plan, NPO refers to the status of "nothing by mouth" (see Parent Ex. G at p. 9).

[21] The deputy director testified that he was unsure why there was a discrepancy in the hearing record  regarding the frequency of vision education services (October 1, 2024 Tr. 248-49). The iBrain education plan and the deputy director's affidavit noted two sessions of vision education services, while the student's 2024-25 schedule listed vision services  three times per week ( compare Dist. Ex. 37, with Parent Exs. P ¶ 15; Parent Ex. G at pp. 40, 55).