STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-163
Application of a STUDENT WITH A DISABILITY, by her parents, 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 and Freedom Legal Group, attorneys for petitioners, by Richa Raghute, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, 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. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request to be reimbursed for their daughter's tuition at the International Institute for the Brain (iBrain) for the 2023-24 school year and declined to issue a pendency determination. The district cross-appeals from that portion of the IHO's decision on the issue of transportation services under pendency. The appeal must be sustained in part. The cross-appeal must be dismissed.
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 in this case has been the subject of four prior State-level administrative appeals (see Application of a Student with a Disability, Appeal No. 24-455; Application of a Student with a Disability, Appeal No. 24-359; Application of a Student with a Disability, Appeal No. 24-187; Application of the Dep't of Educ., Appeal No. 24-065; Application of a Student with a Disability, Appeal No. 22-062; Application of a Student with a Disability, Appeal No. 21-156). The issues in this appeal were remanded back to the IHO by an SRO to determine whether the unilateral placement was appropriate and whether equitable considerations favor relied (see Application of a Student with a Disability, Appeal No. 24-359). Accordingly, the parties' familiarity with the student's educational history is presumed and, as the hearing record has not significantly changed after remand, much of the student's educational history is repeated from the prior decision.[1]
A CSE convened on February 7, 2023 and found the student eligible for special education as a student with multiple disabilities (Dist. Ex. 1 at pp. 1, 42).[2] The CSE recommended that beginning in February 2023 the student attend a 12:1+(3:1) special class in a district specialized school and participate in adapted physical education three times per week (id. at pp. 29, 31). For related services, the CSE recommended the student receive four 60-minute sessions of individual occupational therapy (OT) per week, four 60-minute sessions of individual physical therapy (PT) per week, four 60-minute sessions of individual speech-language therapy per week, three 45-minute sessions of individual vision education services per week, and individual school nurse services as needed (id. at pp. 29-30). The CSE also recommended the student receive the support of a 1:1 daily full-time health paraprofessional and assistive technology devices of an individual switch and mount (id. at p. 30). In addition, the CSE recommended that the parents receive one 60-minute session of group parent counseling and training per month (id. at pp. 29-30). The CSE recommended that the student and parents receive these services on a 12-month basis (id. at p. 31).
In a ten-day notice dated June 20, 2023, the parents notified the district of their intent to enroll the student at iBrain for the 2023-24 school year (Parent Ex. E at p. 1). The parents indicated that they were rejecting the most recent recommendations in the February 2023 IEP because the recommendation for a district specialized school would not address the student's educational needs for the extended 2023-24 school year (id. at pp. 1-2). The parents asserted that the district had failed to timely provide a recommendation as there was no information regarding a proposed school location (id. at p. 2).
In a prior written notice dated June 23, 2023 and school location letter dated June 23, 2023, the district summarized the February 2023 CSE's recommendations and identified the public school location to which the district assigned the student to attend to receive the program and services recommended in the February 2023 IEP (Dist. Ex. 14).[3]
On July 6, 2023, the parent electronically signed an enrollment contract with iBrain for the student's attendance at the school for the 2023-24 school year (Dist. Ex. 6 at p. 6).[4] The parent also electronically signed an undated transportation agreement and an undated nursing agreement for the 2023-24 school year (Parent Exs. G; H).[5]
A. Due Process Complaint Notice and Subsequent Events
In a due process complaint notice dated July 5, 2023, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A).[6] Regarding the CSE process, the parents asserted that the district predetermined the student's programming (id. at p. 7). Next, the parents contended that the district failed to appropriately classify the student as a student with a traumatic brain injury (id.). As to the CSE's recommendations, the parents contended that the district's February 2023 IEP was not appropriate as the student required a small, structured classroom with 1:1 instruction, plus a full-time 1:1 paraprofessional and a full-time 1:1 nurse (id. at p. 3). The parents asserted that a district specialized school was inappropriate to meet the student's needs and that a 12:1+(3:1) classroom was "grossly inappropriate" (id. at p. 6). In addition, the parents claimed that the district failed to recommend 1:1 nursing services, appropriate assistive technology devices, appropriate parent counseling and training, music therapy, sufficient OT and PT, and appropriate transportation services and accommodations (id. at pp. 4-5, 7). Finally, the parents argued that they had not received a prior written notice or school location notice as of the date of filing the due process complaint notice (id. at pp. 4, 6).
The parents contended that iBrain was an appropriate unilateral placement and that equitable considerations weighed in favor of an award of tuition funding (Parent Ex. A at pp. 7-8). The parents requested direct payment for the full tuition at iBrain for the 2023-24 school year as well as related services, 1:1 nursing services, and 1:1 paraprofessional services (id. at p. 8).[7]
Following the filing of the due process complaint notice, the case convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on August 15, 2023 and concluded on March 27, 2024, after six days of proceedings (see Tr. pp. 1-343). The IHO rendered a decision dated July 15, 2024 (see IHO Ex. XVI). In that decision, the IHO found that the district offered the student a FAPE for the 2023-24 school year and, having found a FAPE, the IHO did not address whether iBrain was an appropriate unilateral placement or whether equitable considerations favored the parents'request for funding (see id.).
The parents appealed the July 2024 IHO decision to the Office of State Review. An SRO issued a decision on September 20, 2024, overturning the IHO by finding that the district had denied the student a FAPE for the 2023-24 school year and remanded the case to the IHO to determine whether the parents' unilateral placement of the student at iBrain was appropriate and whether equitable considerations favored the parents' requested relief (see Application of a Student with a Disability, Appeal No. 24-359; see also IHO Ex. XVII).
B. Remand – Impartial Hearing Officer Decision
An impartial hearing reconvened before the same IHO on December 17, 2024 and concluded at the next hearing date on February 3, 2025 (see Remand Tr. pp. 1-47).[8] In a decision dated February 7, 2025, the IHO provided a procedural history of the facts (IHO Decision at pp. 2-4, 14). The IHO noted that although the SRO had found that the student was not offered a FAPE, "after another review of the record, [the IHO found] that Student was offered a FAPE" (id. at p. 4). The IHO held that the district school psychologist and the documentary evidence was persuasive and credible and that the district offered a cogent explanation for the recommendations supported by credible testimony (id.). Despite this, the IHO noted that she was mindful of her responsibility to address the appropriateness of iBrain and equitable considerations (id.).
Turning to the issue of whether iBrain was an appropriate unilateral placement, the IHO held that the iBrain deputy director "could not credibly attest as to what Student needed since he did not have the experience working with students like" this student, who is severely disabled with a traumatic brain injury (IHO Decision at p. 9).[9] The IHO also determined deputy director's testimony regarding the program created for the student and the program implemented by iBrain was not credible and was uncorroborated by the hearing record (id.). The IHO found that the deputy director "could not credibly attest to the progress and Student's goals" and that there were multiple incorrect statements in his affidavit (id.).
Regarding the credibility of the deputy director, the IHO pointed out that he was unable to testify when the student's paraprofessional changed, the name of the new paraprofessional, initially could not remember the name of the student's classroom teacher, struggled to remember related services providers, and could provide no testimony as to the student's related services (IHO Decision at pp. 9-10).[10]
Turning to the specifics of the student's program, the IHO noted that the iBrain deputy director testified that the student was in a 6:1+1 class, but provided vague testimony as to the true class size, finding that the classroom exceeded the recommended class size at least one time per day (IHO Decision at p. 10). With respect to the student's class schedule, the IHO noted that the iBrain deputy director discussed several inaccuracies and found that the inconsistent testimony and errors in the witness' affidavit testimony cast doubt on his familiarity with the student's program (id.). The IHO further found that the deputy director's testimony was "self-serving" (id. at p. 10). The IHO stated that the deputy director's "lack of experience with [students] with severe disabilities leads me to the finding that he could not credibly identify Student's needs or determine that [iBrain] could have met Student's needs" and that the testimony about iBrain was "general and failed to describe why the special education services were provided to this student, and provided no information about the services related to student's specific needs or how any related services [iBrain] provided to student were designed to address her specific needs" (id.).
The IHO further noted that the hearing record included July 2023 and October 2023 IBrain progress reports; however, the IHO noted that the hearing record did not include a graph demonstrating progress that the deputy director had discussed during his testimony (IHO Decision at p. 10). As to goals and progress, the IHO concluded the testimony of the deputy director, regarding both, was inconsistent and there was no credible testimony as to why the student's goals changed from the July to October 2023 progress reports or which, if any, goals the student was actually working on from July to October 2023 or what progress was made after the start of the school year (id. at pp. 10-11).[11]
In addition to the above, the IHO also found the parent was not credible as to the student's needs or progress, or as to the appropriateness of the school, and the IHO determined that during the parent's testimony she gave "the impression she was receiving text messages that fed her answers" (IHO Decision at p. 11). Moreover, the IHO found the hearing record devoid of information as to why nursing services and special transportation were necessary to address unique needs of the student for the 2023-24 school year (id. at p. 12).
Turning to equitable considerations, the IHO held that they did not favor the parents (IHO Decision at p. 13). First, the IHO noted that the notice of unilateral placement did not offer notice that she was seeking funding for nursing and transportation services (id.). The IHO then found that the nursing and transportation contracts were undated, did not have an option to avoid obligation, and there were no witnesses regarding the contracts (id.). The IHO noted that the enforceability of these contracts was "highly questionable" based on the parent's testimony (id.). The IHO determined that requiring the district to pay the contracted amounts would be "severely inequitable," and, therefore, the IHO held that the relief sought by the parent should be "denied completely" (id.).
IV. Appeal for State-Level Review
The parents appeal. The parents argue that the IHO erred in finding that the student was offered a FAPE for the 2023-24 school year, as the SRO had decided the issue and it was not an issue on remand. The parents further contend that the IHO erred by not allowing the parties to present additional evidence upon remand, even though the SRO directed the IHO to ensure an adequate and complete record. The parents allege that the IHO refused to allow additional evidence and gave no coherent rationale, which was an abuse of discretion because the information they wanted to submit was not available at the time of the prior hearing and was pertinent to the remanded issue.
Next, the parents argue that the IHO erred in finding that iBrain was not an appropriate unilateral placement for the student for the 2023-24 school year. The parents contend that the IHO used improper reasoning to find that iBrain was not appropriate, such as basing his determination, in part, on the identity and qualification of the providers. The parent asserts the iBrain witness clarified the discrepancies in the hearing record and that the identities of the providers are not relevant. Further, the parents assert that the IHO erred by finding that the hearing record was unclear regarding what instruction the student received at iBrain. According to the parents, the iBrain education plan contained goals in academics and related services, which were tailored to address the results of the student's most recent evaluations. The parents allege that the IHO erred regarding class size as there were not more than six students in the class and the student's individual nursing and paraprofessional services do not change the class size. The parents also assert that the IHO erred by finding the student did not make progress referencing the iBrain October 2023 quarterly progress report and the additional evidence submitted with the request for review. Lastly, the parents argue that the IHO erred in finding that the student's attendance at iBrain in person was relevant to whether iBrain was appropriate. According to the parents, in order for a program to be appropriate, perfect attendance is not required and the student's home instruction was identical to in-person instruction. Overall, the parents assert that the hearing record shows that iBrain was an appropriate unilateral placement for the student.
The parents argue that the IHO also erred in finding that equitable considerations do not weigh in favor of reimbursement for the cost of the student's tuition and related expenses. According to the parents, the IHO erred in finding that the 10-day notice was not sufficient as there is no requirement the notice contain a specific description of the placement a parent intends to choose for the student. The parents assert that the notice properly informed the district of their concerns with the district's program and intention to remove the student from the district to enroll the student in a private program. Further, the parents contend that the notice was timely and does not warrant a reduction in funding and that the contracts for transportation and nursing services were proper and do not warrant a reduction.
Lastly, the parents argue that the IHO erred by failing to issue an order on pendency. According to the parents, the district should be required to pay for the student's private transportation services under pendency.
In sum, the parents request a finding that the unilateral placement of the student at iBrain for the 2023-24 school year was appropriate, that equitable considerations favor the parent, and an award for full funding for the costs of the student's tuition, transportation, and nursing services, as well as a decision as to the student's placement during the pendency of the proceeding.
The district submits an answer and cross-appeal. The district agrees with the parents that the IHO erred in addressing FAPE as the issue was addressed prior to remand. The district objects to the parents' submission of additional evidence. According to the district, the additional evidence was available prior to the conclusion of the initial impartial hearing. The district notes that although some of the evidence is dated April 2024, the "bulk" of the information was clearly available before the final hearing in March 2024. The district contends that the parents should have realized progress reports would be pertinent to their claim and the parents decided not to present the January 2024 progress report during the initial hearing. The district asserts that expanding the record to include this information would deprive it of its right to confront and question the evidence.
The district argues that the IHO properly denied the request for tuition relief, as the IHO correctly interpreted the hearing record and the evidence. The district notes that the director's testimony was inconsistent and unreliable. The district contends that the IHO properly denied relief under equitable considerations as they do not favor the parents' request for funding. The district also argues that the parents failed to demonstrate that they have a financial obligation to pay, which is a requirement for an award of direct funding.
Regarding pendency, the district submits a cross-appeal, asserting that it is not required to pay for transportation provided by the parent's chosen private agency under pendency. The district alleges that pendency is not contested, and an order is not supported by the facts in the hearing record. The district only contests the entitlement of payment to the private transportation company, asserting it has offered to provide the student with transportation. The district requests a finding that the parent is not entitled to payment for transportation via pendency.
The parents, in a reply and answer to the cross-appeal, reassert their arguments from the request for review.
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 FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[12]
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., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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. Preliminary Matters
Initially, the parties are correct, in that the IHO went outside the scope of the remand by readdressing the issue of FAPE. The SRO found in Application of a Student with a Disability, Appeal No. 24-359, that the student was denied a FAPE, and the IHO did not have authority to render a decision on that issue on remand. The IHO is reminded that the law of the case doctrine "'posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case'" (Perreca v. Gluck, 262 F. Supp. 2d 269, 272 [S.D.N.Y. 2003], quoting Arizona v. California, 460 U.S. 605, 618 [1983]). "Administrative agencies are no more free to ignore the law of the case doctrine than are district courts" (Ankrah v. Gonzales, 2007 WL 2388743, at *7 [D. Conn. July 21, 2007]). The doctrine of the law of the case is intended to avoid retrial of issues that have already been determined within the same proceeding (People v. Evans, 94 N.Y.2d 499, 502-04 [2000] [noting that law of the case has been described as "'a kind of intra-action res judicata'"]; see Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 94 [2d Cir. 2005]; Cone v. Randolph Co. Schs. Bd. of Educ., 657 F. Supp. 2d 667, 674-75 [M.D.N.C. 2009]; see generallyApplication of a Child with a Disability, Appeal No. 98-73 [noting that a pendency determination by an SRO would not be reopened during the proceeding once it was decided]). For the law of the case doctrine to be a bar, the issue must have been actually considered and decided by the higher court (see Ms. S. v. Regl. Sch. Unit. 72, 916 F.3d 41, 47 [1st Cir. 2019]). Accordingly, the IHO's discussion of FAPE was in error and will not be discussed further.
1.Additional Evidence
Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of the Dep't of Educ., Appeal No. 08-024; Application of a Student with a Disability, Appeal No. 08-003; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).
The parents have submitted three exhibits with their request for review (see Proposed SRO Exs. A-C). The first proposed exhibit is an iBrain quarterly report dated January 5, 2024, the second is an iBrain quarterly report date April 12, 2024, and the third is an iBrain quarterly report dated July 5, 2024. The January 2024 iBrain quarterly report was available at the time of the initial impartial hearing, which concluded on March 27, 2024 and the request to include that report into the hearing record is denied. With respect to the later reports, from April 2024 and July 2024, while both are dated after March 27, 2024, they contain information regarding the student's progress during the 2023-24 school year which was available as of the time of the hearing in March 2024. At the time of the hearing, the parents should have known that this type of information would have been pertinent to their case on the issue of whether iBrain was an appropriate unilateral placement for the student; however, there is no indication that the parents attempted to include any such information, to the extent that it was available, during the initial hearing. Under these circumstances, the IHO did not err by not allowing this evidence into the hearing record. Based on the above, it appears that the parents made a decision not to include the January 2024 progress report during the initial hearing. Accordingly, although the later progress reports may not have been available in full at the time of the hearing, the parents' decision not to include evidence of the student's progress at iBrain during the 2023-24 school year was not based on the unavailability of that information.
Overall, as set forth above, the parents failed to explain why they failed to present evidence of progress during the initial impartial hearing. Moreover, to allow the additional evidence now, on appeal, without the district having the opportunity for cross-examination of that evidence weighs against the reliability of that evidence and could be considered as prejudicial to the district. Therefore, I decline to amend the hearing record to include the proposed additional exhibits; however, I do note that even if I did include these exhibits they would not have altered the outcome of the decision as explained below.
B. Unilateral Placement
I now turn to the first issue presented on remand, the appropriateness of the parents' unilateral placement of the student at iBrain for the 2023-24 school year. 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, 142 F.3d at 129). 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).
Initially, a substantial portion of the IHO's determination regarding whether iBrain was an appropriate placement for the student was based on the IHO's determinations that the iBrain director was not credible and the parent was not credible as to the student's needs or progress, and that without credible testimony, there was insufficient evidence to support the parents' burden of proving the appropriateness of the program at iBrain (IHO Decision at pp. 9-12). However, the parents have not appealed from the IHO's determination that both the iBrain director and the parent did not offer credible testimony as to the student's needs or progress (see Req. for Rev.). Instead, the parents reference testimony given by both the iBrain director and the parent to refute the IHO's factual determinations without appealing from the IHO's credibility finding (Req. for Rev. at ¶¶19, 21, 23). Accordingly, as the parents failed to appeal from the IHO's credibility determinations, those findings have become final and binding on the parties and will not be further reviewed on appeal (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]).
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).
In review, of the IHO's determinations, the hearing record includes documentary evidence regarding some contours of the student's program and the student's goals, which taken at its face would not require reliance on the testimonial evidence, which was deemed to be not credible. However, a review of all of the available evidence together raises more questions than it answers regarding the student's programming at iBrain during the 2023-24 school year and, accordingly, does not compel a contrary conclusion from the IHO's determinations.
The hearing record includes an iBrain education plan dated February 9, 2021, with updates on April 20, 2023, June 30, 2023, and July 26, 2023 (Dist. Ex. 3).[13] According to the iBrain education plan, the student was recommended to receive a 12-month program consisting of placement in a 6:1+1 special class, four 60-minute sessions of individual OT per week, five 60-minute sessions of individual PT per week, five 60-minute sessions of individual speech-language therapy per week, three 60-minute sessions of individual vision education services per week, one 60-minute sessions of individual assistive technology services per week, and the support of individual paraprofessional services and individual nursing services throughout the day (id. at pp. 59-60). In addition, the iBrain education plan included recommendations for assistive technology devices, special transportation, parent counseling and training, and other accommodations (id. at pp. 59-61). The plan further indicated a start date for each service as April 5, 2023 (id.).
Annual goals were included in the July 2023 iBrain education plan which targeted the student's skills in literacy, cognition, social interaction, vision, assistive technology, speech-language therapy, PT, OT, and music therapy (Dist. Exs. 3 at pp. 41-53). The hearing record also included quarterly progress reports tracking the student's goals from July 2023 and October 2023 (Parent Ex. M; Dist. Ex. 8). Between July and October 2023, the progress reports demonstrate that the student's goals and benchmarks were discontinued, replaced, or remained the same (compare Parent Ex. M with Dist. Ex. 8).
The IHO and the parties place some focus on the student's progress during the 2023-24 school year, leading up to the October 2023 progress report. In her decision, the IHO identified that the record was unclear as to whether academic goals were addressed between July and October 2023; that the available testimony was "muddled" regarding the implementation of such goals; and that the student primarily demonstrated "regress[ion] or stagnat[ion]" on her related service goals (IHO Decision at p. 11). In their appeal, the parent argues that the student did make progress while at iBrain, while the district argues in their answer that the inconsistencies in the hearing record casted doubt on the instruction provided to the student and any progress made at iBrain (Req. for Rev. ¶¶ 20, 22; Answer ¶¶ 7-10).
It is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364). However, while not dispositive, a finding of progress is, nevertheless, a relevant factor to be considered in determining whether a unilateral placement is appropriate (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]). Accordingly, while the student's progress at iBrain is a relevant factor to consider, the overall lack of information and inconsistencies between documentary and testimonial evidence in the hearing record as to the student's progress does not necessarily result in a finding that the program was not appropriate.
The available testimony from the deputy director indicated that iBrain realigned the student's academic goals based on the results of an updated assessment, which was why both old and new goals appeared in the October 2023 progress report (Tr. pp. 255-56). However, in an attempt to clarify when the goals were changed and the ratings included in the October 2023 progress report, the IHO noted that the deputy director's testimony was unclear and not credible (IHO Decision at pp. 10-11; Tr. pp. 256-62). The IHO pointed out that "[t]here [was] no credible evidence" that the student's academic goals were addressed "between July and October," and that the related services goals primarily demonstrated a lack of progress (IHO Decision at p. 11).
A comparison of the student's progress reports shows that the student's academic goals and benchmarks in July 2023 included ratings for the student's performance, while the October 2023 progress report indicated that those goals were discontinued, and the replacement goals had not been introduced (Parent Ex. M at pp. 1-9; Dist. Ex. 8 at pp. 1-5). As for the student's related services goals and benchmarks, the October 2023 progress report demonstrated that the student had exhibited some progress on a number of benchmarks, but the majority of assigned ratings either indicated a decrease or remained the same (Parent Ex. M at pp. 10-25). Accordingly, the hearing record includes some information as to the student's progress up to October 2023; however, there is insufficient evidence to depart from the IHO's determinations as the hearing record included inconsistencies as to what iBrain worked on with the student between July and October 2023.
Despite the above, what is more concerning as to the parents' presentation of evidence is the lack of information describing what services were actually provided to the student during the 2023-24 school year.
As described above, the July 2023 iBrain education plan included a program recommendation with a projected start date of April 5, 2023 (Dist. Ex. 2 at pp. 59-61). It is worth noting here that there does not seem to be a dispute that the educational program, as recommended in the July 2023 iBrain education plan, would have been appropriate to address the student's needs, if implemented during the 2023-24 school year; rather, the IHO's determination as to the appropriateness of iBrain focus on the evidence in the hearing record as to what was actually delivered to the student (IHO Decision at pp. 8-12).
For instance, the hearing record included the student's schedule at iBrain and an attendance report showing that the student was either present, had an excused absence, or received home services for each school day in July and August 2023 (Dist. Exs. 4; 5). The IHO determined that the iBrain attendance documents did "not credibly demonstrate any actual attendance at the school" (IHO Decision at p. 11).[14] In addressing the portion of the IHO's determinations related to the delivery of services during the 2023-24 school year, the parents for the most part assert that they only need to prove that the program in place for the student at the start of the school year was appropriate to meet the student's needs (Req. for Rev. ¶¶18-20). It is well settled that parents need not show that their unilateral placement provides every service necessary to maximize the student's potential; however, they must demonstrate that the placement provides education instruction specially designed to meet the unique needs of the student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, at *9 [S.D.N.Y. Mar. 18, 2010]). "The test for the private placement 'is that it is appropriate, and not that it is perfect'" (T.K. v. New York City Dep't of Educ., 810 F.3d 869, 877–78 [2d Cir. 2016] [citations omitted]).
The IHO noted that the parent testified that the student stayed home from school on occasion during the 2023-24 school year; however, she did not remember if any program or instruction was provided to the student (IHO Decision at p. 11). In response to this determination, the parents concede that the parent testified that the student occasionally received home instruction and contend that the iBrain director testified the student's home instruction program was identical to her program in school (Req. for Rev. ¶23). On March 27, 2024, the parent testified that the student received home services "when she's sick or she has appointments"(Tr.p. 328). However, the hearing record does not quantify how frequently this happened during the course of the 2023-24 school year. According to the iBrain director, students who were receiving home services would still have their individual paraprofessional and nursing services and would also participate in morning meetings, music therapy, PT, and receive academics (Tr. pp. 282-84). On days where the student had an excused absence, the iBrain director testified that students would receive either a "home exercise program" or a "home educational program"; however, the parent testified that she did not remember ever receiving one (Tr. pp. 284-85, 328-29).
It is worth noting that the student's attendance record should have been sufficient to clarify that the student was receiving services throughout the 2023-24 school year; however, review of the student's attendance record shows that iBrain's stated attendance policy is likely in contravention of State regulation as a "record of each pupil's presence, absence, tardiness and early departure shall be kept by each public and nonpublic elementary, middle or secondary school in a register of attendance" (8 NYCRR 104.1[c] [emphasis added]). Additionally, "any absence for a school day or portion thereof shall be recorded as excused or unexcused" (8 NYCRR 104.1[d][7][iii]). In combining whether the student was present, had an excused absence, or received home services into one item, iBrain's attendance policy makes it impossible to know whether or when the student actually received services, even with the descriptions provided by the iBrain director.
Overall, considering the IHO's credibility determinations, the inconsistencies in the hearing record regarding the program actually delivered to the student, and the arguments presented by the parties on appeal, there is insufficient basis to overturn the IHO's determinations that there was not a sufficient record of the services the student actually received during the 2023-24 school year. Pertinently, the parents could have provided valid attendance records, or other proof of delivery of services; however, the parents declined to do so either at the initial hearing, or when the matter was remanded.[15][16]
Having found the hearing record does not support departing from the IHO's determination that the unilateral placement was not appropriate for the student, the necessary inquiry is at an end and there is no need to address equitable considerations. The parents' request for funding for the 2023-24 school year is denied.
C. Pendency
I next turn to the parties' arguments regarding the student's placement during the pendency of this proceeding.
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[17] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).
Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).
The parties agree that pendency in this proceeding, as of the date of the remand hearing, was based on the decision rendered in Application of a Student with a Disability, Appeal No. 24-187 (Remand Tr. pp. 22-23; see Dist. Ex. 17). However, the question presented pertains to whether the district is required to pay for special transportation services provided by the private company, Sisters Travel, via pendency retroactive to the filing of the due process complaint notice in this matter on July 5, 2023 (Remand Tr. p. 31; Parent Ex. A). The parents argue that the IHO should have ordered pendency inclusive of transportation by Sisters Travel. The district contends that it has offered to provide transportation services to the student and is not required to fund transportation provided by Sisters Travel under pendency.
Initially, I note that the decision in Application of a Student with a Disability, Appeal No. 24-187, issued on July 1, 2024, awarded "tuition costs at iBrain, contracted for nursing services, and contracted for transportation services" (Dist. Ex. 17 at p. 11).[18]
In a letter dated July 11, 2024, the district indicated that it was aware of the parents' intention to unilaterally place the student at iBrain for the 2024-25 school year and that the district was prepared to provide the student with transportation services at no cost to the parents effective immediately, referring back to July 1, 2024 (Dist. Ex. 20). The district indicated that it required documentation from iBrain to start transportation services and gave contact information for a person to contact in order to arrange transportation services for the student (id.).
In a letter, dated August 29, 2024, the district indicated that it had received the parents' due process complaint notice, regarding the 2024-25 school year, which confirmed that the student was unilaterally placed at iBrain and sought pendency for transportation services (Dist. Ex. 21). The district indicated that the district was "prepared to implement pendency transportation" and transport the student to and from iBrain every school day "consistent with the Student's pendency entitlement" (id.). The letter stated that transportation would be at no cost to the parent and was available immediately (id.).
Overall, the parties arguments leave some confusion as to the timeline for the student's pendency services during this proceeding. As noted above, on remand, the parents requested funding for transportation services provided by Sisters Travel via pendency retroactive to the filing of the due process complaint notice in this matter on July 5, 2023 (Remand Tr. p. 31; Parent Ex. A). However, the pendency setting event that the parties agree established the student's pendency program was the July 1, 2024 decision in Application of a Student with a Disability, Appeal No. 24-187 (Remand Tr. pp. 31; Dist. Ex. 17). Accordingly, neither party presents an argument as to the student's entitlement to pendency services between July 5, 2023 and July 1, 2024 and there is no basis for rendering a decision on that period of time at this point of the proceeding.
Next, the parties agree that as of July 1, 2024, the July 1, 2024 decision constitutes the student's pendency program and, as noted above, that decision explicitly awarded "contracted for transportation services" (Dist. Ex. 17 at p. 11). However, the hearing record in this matter does not include a contract for transportation services subsequent to July 1, 2024; the only transportation contract in the hearing record was "effective from July 1, 2023, through June 30, 2024" ( Parent Ex. G at p. 1). Accordingly, it is unclear if the parent contracted with Sisters Transportation for the 2024-25 school year or if any agreement with Sisters Travel for the 2024-25 school year was entered into prior to the district's July and August letters.
Based on the above, and the parties' arguments presented after remand and now, on appeal, as of July 1, 2024, the decision in Application of a Student with a Disability, Appeal No. 24-187 constitutes the student's educational program through the conclusion of this proceeding. However, as to the parties' dispute as to funding for transportation services, the hearing record does not include sufficient evidence to make a determination. Nevertheless, if the parents contracted with Sisters Travel after July 1, 2024 and prior to the July 11, 2024 letter from the district, the parents should be entitled to transportation funding pursuant to pendency.
VII. Conclusion
Having found the hearing record does not support overturning the IHO's determination that the parent failed to demonstrate iBrain was an appropriate unilateral placement for the student for the 2023-24 school year, the parents' request for relief is denied. In addition, the parties agree that the student's placement during the pendency of this proceeding, as of July 1, 2024, is based on the decision rendered in Application of a Student with a Disability, Appeal No. 24-187. However, the evidence available in the hearing record does not provide sufficient information to make a determination as to funding for privately obtained transportation services.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the student is entitled to pendency pursuant to the education program awarded in Application of a Student with a Disability, Appeal No. 24-187 as of the date of issuance of that decision until the conclusion of this proceeding.
Footnotes
[1] As part of the remand, the IHO was given "discretion regarding adequate development of the hearing record on those topics and whether to provide the parent an opportunity to present additional evidence regarding the student's programming and progress at iBrain and a concomitant opportunity for the district to respond" (Application of a Student with a Disability, Appeal No. 24-359). The IHO then asked the parties if they would like to present additional evidence and counsel for the parent indicated an intention to submit additional evidence, after which counsel for the district indicated that it would also do so but restated the district's position that no additional evidence was necessary and that it would be unfair to allow the parent "a second chance to relitigate their case" (Remand Tr. pp. 10-13). The IH) then reserved decision on that point before listening to the parties' arguments and deciding that he had all of the information needed to make a decision (Remand Tr. pp.13-17). When the parties reconvened, they offered several additional exhibits into the hearing record (Remand Tr. pp. 24-29; Dist, Exs, 17-21). Other than those documents, no further evidence was admitted into the hearing record after remand.
[2] At the time of the CSE meeting, the student attended the International Academy of Hope (iHope) (Dist. Ex. 1 at p. 3).
[3] The notices were also sent in Spanish (see Dist. Ex. 14).
[4] An affidavit from the chief operating officer at iBrain, dated July 25, 2023, stated that the student began attending the school for the 2023-24 school year on July 5, 2023 (Dist. Ex. 2 ¶ 2).
[5] The enrollment agreement included a "Signature Certificate" page (Dist. Ex. 6 at p. 7). Neither the transportation agreement nor the nursing agreement included something similar (see Parent Exs. G; H).
[6] The parents requested pendency and asserted that the student's pendency entitlements included direct payment of tuition and costs for related services at iBrain plus direct payment for special transportation services based on a prior IHO's decision dated April 4, 2022 (Parent Ex. A at p. 2).
[7] The parents also requested assistive technology services and devices (Parent Ex. A at p. 9).
[8] The transcripts following remand were not consecutively paginated with the earlier hearing transcripts , for clarity, the transcripts following remand will be identified as such (Remand Tr. pp. 1-47).
[9] The IHO discussed that the deputy director's teacher certification had expired as he no longer taught students (IHO Decision at p. 9). Further, the IHO noted the deputy director had never worked in a District 75 school and his special education experience was limited to classrooms with integrated co-teaching services (id.).
[10] The IHO found that based on the testimony of the deputy director, "the number of individuals in Student's classroom at least one time per day exceeded the recommended class size" (IHO Decision at p. 10).
[11] The IHO also noted that the attendance records did not credibly demonstrate that the student actually attended school, as the student was marked as present even if the student was absent (IHO Decision at p. 11). The IHO noted that the parent could not recall whether the student received any instruction or services when the student was home during the 2023-24 school year (id.).
[12] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[13] Although dates are given for testing, the remainder of the information included in the education plan does not identify when it was reported (see Dist. Ex. 3).
[14] The IHO also found that the iBrain director did not know the names of the student's paraprofessional or classroom teacher, had difficulty remembering the student's other providers and identifying which providers provided which services to the student, provided testimony inconsistent with the student's schedule, and provided inconsistent testimony as to what goals the student was working on (IHO Decision at pp. 9-11). However, as the hearing record overall lacks sufficient evidence as to the services delivered to the student during the 2023-24 school year, the remainder of the IHO's determinations need not be specifically addressed.
[15] It is noted the additional evidence submitted by the parents would not have altered this finding as documents submitted are merely progress reports and they do not provide any additional information as to the program actually delivered to the student at iBrain.
[16] There is some testimony indicating the existence of some documentary evidence that could have supported an argument as to what services were delivered during the 2023-24 school year or at least, what days the student actually attended school. For example, the parent testified that the student's teacher sent her daily emails when the student attended class (Tr. p. 330); however, the parents did not submit such evidence either at the initial hearing or here, on appeal.
[17] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).
[18] There is a typographical error in the ordering clause in Application of a Student with a Disability, Appeal No. 24-187, which misidentified the name of the transportation company (Dist. Ex. 17 at p. 11).