STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-252
Application of a STUDENT WITH A DISABILITY, by his 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, Ltd., attorneys for petitioner, by Peter G. Albert, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Augustus K. Balasubramaniam, 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 her request that respondent (the district) fully fund the cost of her son's (the student's) private transportation services delivered by Sisters Travel and Transportation Services, LLC (Sisters). The district cross-appeals from those parts of the IHO's decision which found that it failed to offer the student an appropriate educational program, ordered it to fund the student's tuition and related costs at the International Academy for the Brain (iBrain) for the 12-month, 2024-25 school year, and ordered it to fund the cost of an independent neuropsychological evaluation. The appeal must be dismissed. The cross-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 in this matter is nonverbal and non-ambulatory, has received diagnoses of cerebral palsy, chronic lung disease and hypertonia, and has a history of aspiration pneumonia and croup, which has resulted in multiple hospitalizations (Parent Exs. B at p. 1; C at pp. 1, 39; H at p. 8; Dist. Ex. 7 at p. 1). At the start of the 2022-23 school year (second grade), the student was seven years old, attended a district specialized school in a 12:1+(3:1) special class and received related services of speech-language therapy, occupational therapy (OT), and physical therapy (PT) (Dist. Ex. 7 at p. 1).[1]
On November 22, 2022, the district completed a psychological update by administering the Student Annual Needs Determination Inventory (SANDI), the School Function Assessment (SFA), and conducting a teacher interview (Dist. Ex. 7 at p. 1). The psychological update report reflected the student's SANDI academic, social/emotional, and activities of daily living (ADL) scores and SFA scores related to ADLs (id.). The student demonstrated skills such as the ability to express different emotions, look at familiar people, respond to sensory activities, show interest in an object or person, and voluntarily grasp and release objects (id. at p. 2). SFA results reflected that the student "d[id] not perform" in most areas indicating his dependence on adults to complete school related ADL tasks (id. at p. 1).
The student attended iBrain for the 2023-24 school year (Parent Exs. D; E; F; G).[2] A CSE convened on November 14, 2023, determined that the student was eligible for special education as a student with a traumatic brain injury (TBI), and developed an IEP with a projected implementation date of December 4, 2023 (Parent Ex. C at pp. 1, 39).[3] The November 2023 CSE recommended that the student receive 12-month services in a district specialized school consisting of a 12:1+(3:1) special class, adapted physical education, and related services of four 60-minute sessions per week of individual OT, one 60-minute session per week of OT in a group of two, five 60-minute sessions per week of individual speech-language therapy, and five 60-minute sessions per week of individual PT (id. at pp. 33-34, 35). The CSE also recommended daily, full-time, individual paraprofessional services, a static display speech-generating device and one 60-minute session per week of assistive technology services, and for the parent, one 60-minute session per month of parent counseling and training (id. at p. 34).
By letters dated June 11, 2024, the district provided the parent with prior written notice of the November 2023 CSE recommendations for the student's program and the assigned public school location where the student's IEP would be implemented (Dist. Exs. 4; 5). In a 10-day notice letter dated June 17, 2024, the parent informed the district of her disagreement with the November 2023 CSE's recommendations and indicated that no school location letter had been issued for the 2024-25 school year (see Parent Ex. A at pp. 10-11). The parent further notified the district of her intention to unilaterally enroll the student at iBrain and seek public funding for the cost of the student's attendance (id.). The parent also asserted the student's right to pendency at iBrain and "continue[d] to request [i]ndependent [e]ducational [e]valuations (IEEs)" of the student and that the CSE reconvene after the IEEs were completed (id. at p. 11). On June 18, 2024, the parent entered into an agreement with Sisters to provide transportation services to the student from July 2, 2024, through June 27, 2025 (id. at pp. 26-32).
A. Due Process Complaint Notice
In a due process complaint notice, dated July 9, 2024, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 12-month, 2024-25 school year based upon various procedural and substantive violations of the IDEA (see generally Parent Ex. A). Generally, the parent alleged that the district failed to provide a procedural safeguards notice or a prior written notice and school location letter; failed to evaluate the student; denied the parent the opportunity to participate in the CSE process and predetermined the outcome of the November 2023 CSE meeting; and that the November 2023 CSE failed to identify the student's disability and needs, lacked appropriate evaluations, did not recommend necessary training for assistive technology and medical needs, failed to develop measurable annual goals or recommend appropriate accommodations, failed to recommend school nurse services, music therapy, and failed to recommend necessary special transportation accommodations (id. at pp. 4-7). More specifically, the parent alleged that the recommended 12:1+(3:1) special class was not appropriate and that the student's highly intensive management needs required that he be placed in a class with no more than six students (id. at p. 5). The parent also argued that the district's assigned school site was not capable of implementing the student's IEP due to the district's failure to recommend extended school day services (id.). Next, the parent asserted that iBrain was an appropriate unilateral placement and that equitable considerations did not warrant a reduction in the parent's request for funding (id. at p. 7). As relief, the parent requested direct funding for the costs of the student's attendance at iBrain including tuition and transportation services for the 12-month, 2024-25 school year, funding for an independent neuropsychological evaluation, and for the CSE to reconvene following the "completion of an IEE" (id. at p. 8).[4]
B. Impartial Hearing Officer Decision
An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over this matter on July 10, 2024 (IHO Decision at p. 3). A prehearing conference was held on August 19, 2024 (Aug. 19, 2024 Tr. pp. 1-11). [5], [6] The parties reconvened before the IHO for an impartial hearing on September 25, 2024, which concluded on October 24, 2024 after three additional days of proceedings (Sept. 25, 2024 Tr. pp. 12-44; Oct. 9, 2024 Tr. pp. 45-81; Oct. 24, 2024 Tr. pp. 1-31).
In a decision dated March 23, 2025, the IHO determined that the district failed to offer the student a FAPE for the 2024-25 school year, that iBrain was an appropriate unilateral placement, and that equitable considerations did not warrant a reduction in the amount of tuition funding requested by the parent (IHO Decision at pp. 9-26). In finding that the district failed to offer the student a FAPE, the IHO determined that the student had highly intensive management needs not met by the recommended special class size, and, finding a denial of FAPE for this reason, did not analyze the parent's additional claims regarding the alleged procedural violations or appropriateness of the student's IEP (id. at pp. 9-12). The IHO further found that while it was evident that the student required special transportation services, it was unreasonable to require the district to pay for transportation for school days on which the student did not utilize the services (id. at p. 22). As relief, the IHO ordered the district to fund the costs of the student's tuition at iBrain, the "transportation services actually provided to and used by the [s]tudent on school days during the 2024-25 12-month school year," and an independent neuropsychological evaluation of the student (id. at pp. 25-26).
IV. Appeal for State-Level Review
The parent appeals and alleges that the IHO erred in limiting the awarded relief for transportation services to those days on which the student actually utilized the services. The parent argues that the IHO's order violates the terms of her contract with Sisters and that the IHO did not make findings that the costs for the student's transportation were excessive or unreasonable. The parent further asserts that because the IHO found that iBrain was an appropriate unilateral placement and that the student's transportation services were appropriate, there was no equitable basis to reduce the parent's award. As relief, the parent requests funding for the costs of the student's transportation services in accordance with the terms of the contract for the 2024-25 school year with Sisters.
In an answer and cross-appeal, the district argues that the IHO erred in finding that it failed to offer the student a FAPE for the 2024-25 school year. The district contends that the November 2023 IEP included information from the iBrain educational plan, however the CSE did not adopt all of the iBrain recommendations. The district further asserts that the IEP indicated when the CSE made a different recommendation, did not include internal inconsistencies, and that the IHO erred in finding that the CSE agreed with the recommendation for a 6:1+1 special class. The district argues that the CSE appropriately recommended a 12:1+(3:1) special class because the student's program consisted primarily of habilitation and treatment, and that the IHO erred in finding that the student's highly intensive management needs required a recommendation for a 6:1+1 special class. The district contends that the CSE made appropriate transportation recommendations and that the student's music therapy goals would be addressed through its comprehensive program recommendations. The district also alleges that the CSE considered sufficient evaluative information in the development of the IEP, that the hearing record did not support a need for extended school day services, and that the IHO's finding that the district failed to offer a FAPE should be reversed.
The district further argues that the parent failed to meet her burden of demonstrating the appropriateness of iBrain given that none of the student's service providers testified at the impartial hearing and no evidence of the student's attendance was submitted. The district also contends that the parent did not establish the appropriateness of the transportation services delivered by Sisters and that the IHO erred in awarding the parent tuition and transportation funding. With regard to equitable considerations, the district asserts that the parent did not demonstrate that she provided 10-day notice to the district, arguing that there was no evidence that the letter was delivered to the district. The district also contends that the 10-day notice was speculative and that the parent did not consider the district's offer of placement before rejecting it. The district further asserts that the parent rejected the district's offer to provide transportation. The district argues in the alternative that the IHO's award of partial funding for the transportation services delivered by Sisters should be upheld. Lastly, the district contends that the IHO erred in ordering the district to fund an IEE because the CSE relied on adequate evaluative information when developing the IEP.
In a reply and answer to the district's cross-appeal, the parent reiterates her arguments regarding the district's failure to offer the student a FAPE, and argues for the first time that the CSE's failure to recommend 1:1 nursing services was a denial of a FAPE to the student. The parent also contends that the student required extended school day services, and music therapy to receive a FAPE. The parent reasserts the appropriateness of iBrain and argues that equitable considerations do not warrant a reduction in the amount of the parent's requested relief.
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 generally Forest 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]).[7]
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. FAPE
In its cross-appeal, the district argues that the IHO erred in finding that the district failed to offer the student a FAPE for the 2024-25 school year, specifically, that the IHO erred in finding that the recommended 12:1+(3:1) special class did not meet the student's needs (IHO Decision at p. 3).[8] However, review of the November 2023 IEP provides a basis to affirm the IHO's finding that the district failed to offer the student a FAPE for the 2024-25 school year as set forth below.
The November 2023 IEP remained in effect at the start of the 2024-25 school year and provided the basis for the district's position that it offered the student a FAPE for the 2024-25 school year (Parent Ex. C). According to the June 2024 prior written notice, and affidavit testimony from the district school psychologist/CSE representative (school psychologist), the November 2023 CSE relied on an October 2023 iBrain report and education plan to develop the student's IEP (Dist. Exs. 4 at p. 3; 9 ¶¶ 7, 8). The school psychologist testified during cross-examination that the CSE used the information from the iBrain education plan and "the majority of the information listed on the sections of the present levels of performance . . . came from the reports generated by school personnel that worked directly with the student" (Sept. 25, 2024 Tr. pp. 34-35). Review of the November 2023 IEP present levels of performance indicated that the student "require[d] a 6:1[+]1 classroom along with a modified environment that reduce[d] visual and sound distractions in combination with individual and small group instruction to allow him to thrive academically" and "[the student] need[ed] a small, quiet multi-sensory setting 6:1[+]1 classroom setting for him to make progress academically" (Parent Ex. C at pp. 2, 7). Although the school psychologist did not provide information on how the CSE identified the student's management needs, the November 2023 IEP, apparently copying from the iBrain education plan, indicated the student's management needs included a "[s]mall class size of no more than six students" (id. at p. 15).
As such, review of the November 2023 IEP shows that the CSE determined that the student required a small class size of no more than six students; however, ultimately recommended a 12:1+(3:1) special class placement (Parent Ex. C at pp. 2, 7, 15, 33). An internal incongruity of this magnitude, wherein a CSE identifies a specific class placement as a need for the student in the IEP but then fails to recommend that specific setting, requires finding that the IEP did not offer the student a FAPE. Accordingly, on this basis, I decline to overturn the IHO's finding that the district failed to offer the student a FAPE for the 2024-25 school year. Therefore, the portion of the district's cross-appeal that asserts that the IHO erred in finding a denial of FAPE for the 2024-25 school year is dismissed.
B. Unilateral Placement
The district argues in its cross-appeal that the IHO erred in finding that the parent met her burden to prove the appropriateness of the student's unilateral placement at iBrain for the 2024-25 school year. Specifically, the district contends that given the lack of direct provider testimony and attendance records the hearing record does not demonstrate that iBrain provided the student with specially designed instruction to meet his unique needs.
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).
At the outset, I note that the student's unilateral placement in this matter is comprised of both his attendance at iBrain and the special transportation services provided to him by Sisters. As the Second Circuit has explained, "[t]he first two prongs of the [Burlington/Carter] test generally constitute a binary inquiry that determines whether or not relief is warranted, while the third enables a court to determine the appropriate amount of reimbursement, if any" (see A.P. v. New York City Dep't of Educ., 2024 WL 763386 at *2 [2d Cir. Feb. 26, 2024]). Here, while the IHO thoroughly analyzed the appropriateness of the iBrain component of the placement, he gave relatively short shrift to the Sisters component, instead reducing an award of funding for Sisters based on equitable grounds without much preliminary consideration as to whether Sisters addressed the student's special transportation needs or if iBrain and Sisters in tandem constituted an appropriate unilateral placement for the student. For clarity of presentation, I will address the components of the unilateral placement separately below; however, the appropriateness of the unilateral placement in this matter remains governed by the totality of the circumstances standard and its application to the evidence in the impartial hearing record.
1.The Student's Needs
A discussion of the student's needs is necessary to evaluate whether iBrain provided the student with specially designed instruction to address his educational needs.
At the time the June 13, 2024 iBrain education plan was developed, the student was eight years old (Parent Ex. B at p. 1). In the area of cognition, the student demonstrated an awareness of his environment and object permanence, specifically trying to locate his iPad, had some understanding of cause and effect, and demonstrated awareness of people entering and leaving the classroom and to their location and conversations (id. at pp. 1, 2). Academically, the student did not recognize his name in print, have a concept of print/book orientation or pictures versus print, although he did know that when he touched the "more" icon on his device, he received more of the activity (id. at p. 2). The student was working on identifying numbers and had "some concept of more" versus "all done" (id. at p. 1). The iBrain plan stated the student worked on literacy and math skills using his AAC device, with goals to answer "what" or "who" questions provided a field of two choices, "yes/no" and to identify numbers up to two with demonstrating one-to-one correspondence (id. at p. 31).
With respect to speech-language functioning, the June 2024 iBrain education plan reported the student used a four-panel switch AAC device that indicated "yes," "no," "more," or "all done" to make choices and request, and to work on understanding cause and effect (Parent Ex. B at p. 9). The iBrain plan reported the student communicated through eye gaze, facial expressions, and vocalizations and required support to use his communication device effectively (id. at pp. 14-15). As related to assistive technology, the iBrain education plan reported the student used a beginning level communication device to address social engagement with greetings such as "hello/goodbye; yes/no" and "more," "turn the page," or "I like it/I don't like it," and to further target cause and effect skills (id. at pp. 19-20). The student ate all textures of food with assistance for grasp of finger foods, and maximal assistance to use a "bendy spoon" to engage in self-feeding, as well as cues to pace and take breaks when drinking (id. at p. 7).
According to the iBrain education plan, OT services supported the student's increased engagement in fine motor or academic tasks, and provided sensory regulation activities and sensory interventions to aid in sustaining his attention and encouraging regulation, with goals targeting areas of academics, play and self-care (Parent Ex. B at pp. 23, 25, 46, 47). The student required assistance with dressing, feeding, and all ADLs (id. at pp. 1, 11, 26, 54). In the area of PT, the student required a wheelchair for transport in all settings, including to and from school, used a fully supported gait trainer, and required maximal support for mobility and transfers (id. at p. 26). The iBrain plan reported that PT goals focused on increased participation in mobility and stability activities (id. at p. 44). According to the iBrain plan, music therapy services worked on increasing the student's engagement in cause and effect play and expressive communication through music interventions (id. at pp. 28-29, 48). The iBrain education plan included a health care plan that reflected the student's diagnoses, and interventions and activities to monitor and report symptoms and signs related to skin breakdown and pulmonary or bladder infections, and provide for medication administration and needs related to maintaining respiratory health (id. at pp. 34-37, 55).
2.iBrain
The deputy director of special education (deputy director) at iBrain described the program at iBrain as created for students with TBI and brain-based disorders, that was provided during an extended school day from 8:30 a.m. to 5:00 p.m. over the 12-month school year (Oct. 24, 2024 Tr. pp. 3-4, 7). The deputy director testified that students within this interdisciplinary program each received 1:1 paraprofessional services and 60-minute related service sessions, and instruction in either 6:1+1 or 8:1+1 classes, with 11 classrooms spread over two campuses (Oct. 24, 2024 Tr. p. 7).
The hearing record included a quarterly progress report dated July 5, 2024, that provided information about the student's performance towards some of his annual goals during the 2023-24 school year (Parent Ex. G).[9] While the progress report indicated that many goals had not yet been introduced, other goals reflected qualitative descriptions of the amount of progress and the percentage of accuracy the student had made by the date of the report (id.). For example, the progress report indicated that the student's progress towards a goal to use his multimodal device to answer "who" questions was "[e]merging" and he demonstrated 64 percent accuracy (id. at p. 1). According to the progress report, by July 2024 the student had demonstrated at least some progress toward or achieved annual goals in the areas of using his AAC device during story time; identifying numbers up to 1; attending to a small group activity, non-screen tasks, and objects; demonstrating controlled upper extremity movement; vocalizing/playing an instrument in response to prompts; using total communication to communicate preferences and requests, make choices, and answer yes/no questions; using both hands to play an instrument; reducing display of adverse or off-task behaviors; improving functional grasp, bilateral coordination, self-feeding, grooming, and dressing skills; riding an adaptive bike; initiating and terminating cause-and-effect activities; following one-step directions; and demonstrating functional play skills (see id. at pp. 1, 3, 5, 7, 9-14, 16, 18, 20).
The June 2024 iBrain plan for the 2024-25 school year described the student's current level of functioning in the areas of cognition, academics, assistive technology, communication, gross and fine motor, and ADLs, and identified supports and materials to address his management needs (Parent Ex. C at pp. 1-34). Consistent with the annual goals included in the July 2024 quarterly progress report that had not yet been initiated or mastered, the June 2024 iBrain plan set forth annual goals to address the student's needs in the areas identified (compare Parent Ex. C at pp. 38-49, with Parent Ex. G). iBrain also developed annual goals related to music therapy, parent counseling and training, and paraprofessional services (id. at pp. 49-51). Additionally, the iBrain plan included an individualized health plan to address the student's needs related to his medical diagnoses (id. at pp. 34-37).
For the 2024-25 school year, iBrain recommended the student attend a 12-month program consisting of a 6:1+1 special class placement along with related services that included four 60-minute sessions per week of individual OT, one 60-minute session per week of group (2:1) OT, five 60-minute sessions per week of individual PT, five 60-minute sessions per week of individual speech-language therapy, two 60-minute sessions per week of individual music therapy, one 60-minute session per week of group music therapy, and one 60-minute session per week of assistive technology services (Parent Ex. B at pp. 54-55). The June 2024 iBrain education plan also provided for one 60-minute session per month of individual/group parent counseling and training (id. at p. 55). In addition, the June 2024 iBrain education plan provided for the daily support of a 1:1 paraprofessional, daily school nurse services as needed, special transportation services, assistive technology devices, and training for school personnel in areas of AAC, braces/orthotics use, seizure safety, direct instruction, asthma precautions, and feeding protocols (id. at pp. 54-56).
With regard to iBrain, the district asserts that the parent did not provide testimony from any providers who worked directly with the student, that the deputy director who testified did not provide any specificity regarding the student's needs or performance, and that the parent did not include a schedule or any attendance records. Further, the district argues that it was impossible to confirm from the hearing record how much of the student's day was dedicated to mathematics, reading/writing, science, or social studies, how many days the student attended school or how many sessions of related services the student received. The district emphasized the importance of knowing the student's actual attendance due to his medically fragile condition.
Review of the hearing record supports the IHO's determination that iBrain provided specially designed instruction to address the student's unique needs. As an initial matter, there is no requirement that parents must present particular forms of evidence in order to meet their burden under the Burlington-Carter standard; rather, as previously discussed, the "totality of the evidence" standard should be employed when determining the appropriateness of a unilateral placement. Moreover, as described above, the iBrain education plan identified the student's needs, and developed goals and recommended services designed to address those needs during the 2024-25 school year (Parent Exs. B; G). Although the deputy director was not a direct service provider to the student, on October 24, 2024 he testified that during the 2024-25 school year he observed the student at school approximately two hours per week, noting that the student had "done a phenomenal job in academics so far this year" (Oct. 24, 2024 Tr. pp. 11, 15-16).[10] However, the inquiry as to appropriateness does not end with the services and instruction received by the student from iBrain, as the student's unilateral placement also included the special transportation services provided by Sisters.
3. Private Transportation Services Delivered by Sisters
With regard to the transportation services obtained from Sisters, the district argues that the parent asserted in her due process complaint notice that the student required a 1:1 transportation paraprofessional, limited travel time and a lift bus (Parent Ex. A at pp. 3, 4, 7); however, the parent offered no testimony or evidence to establish that Sisters offered those services, or evidence of how the transportation services were offered, and when the student was picked up from home and dropped off after school. For those reasons, the district asserts that the IHO erred in awarding transportation costs to the parent.
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]). Specialized forms of transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 891, 894 [1984]; Dist. of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).
For school aged children, according to State guidance, the CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and the IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate," which may include special seating, vehicle and/or equipment needs, adult supervision, type of transportation, and other accommodations ("Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at https://www.nysed.gov/sites/default/files/programs/special-education/special-transportation-for-students-with-disabilities_0.pdf). Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance (see Donald B., 117 F.3d at 1375; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]). For preschool students with a disability, State regulations provide that "[i]n developing its recommendation for a preschool student with a disability to receive programs and services, the committee must identify transportation options for the student and encourage parents to transport their child at public expense where cost-effective" (8 NYCRR 200.16 [e][5]).[11] However, in general it is not uncommon for parents to continue to transport their three- and four-year-old children to daycare and preschool programs themselves.
It is undisputed that the student requires a "1:1 paraprofessional to support his medical, physical, cognitive, and sensory needs throughout the day" and for "support ranging from minimal to total assistance during all transitions and transfers throughout the day, maximal support for functional mobility and navigation of all environments, maximal assistance for completion of all activities of daily living (ADLs), and support throughout the day to aid in attention to tasks, use adapted devices and assistive technology, don/doff orthotics, position changes, behavior and impulsivity management, and overall safety" (Parent Exs. B at p. 8; C at p. 7). It is similarly uncontested that the student's need for paraprofessional support extends to his transportation to and from school. Both the iBrain and the November 2023 CSE and iBrain recommended that the student receive the support of a 1:1 paraprofessional, a lift bus, wheelchair accessibility, limited travel time, and climate control as part of his special transportation services (Parent Exs. B at p. 54; C at pp. 38-39). After rejecting the district's programming in a 10-day notice letter dated June 17, 2024, on June 18, 2024, the parent entered into a transportation agreement with Sisters to provide the student's transportation services to iBrain for the 12-month, 2024-25 school year (Parent Ex. A at pp. 10, 26-32). Review of the parent's agreement indicated that Sisters agreed to provide the student with air conditioning, regular-size wheelchair accessibility (e.g. lift-bus/wheelchair ramp), sitting space to accommodate a person to travel with the student, and less than 90 minute travel time each way (id. at pp. 26, 27). The parent's agreement with Sisters does not include the provision of a 1:1 paraprofessional during travel (id. at p. 27). Moreover, while the parent testified that during the 2024-25 school year the student attended iBrain in person, and the deputy director testified that the student "arrive[d] to and from school by a third-party vendor," there was no testimonial or documentary evidence in the hearing record to demonstrate that the student received the support of a 1:1 paraprofessional during transport (Oct. 9, 2024 Tr. p. 76; Oct. 24, 2024 Tr. p. 13).
It is well settled that a parent need not show that a unilateral placement meets state education standards or requirements and need not show that it furnishes every special service necessary to maximize a student's potential in order to qualify for reimbursement under the IDEA; rather, a parent has the burden to establish that the unilateral placement provides specially designed instruction to meet the student's unique needs, as well as support services as necessary to allow the student to benefit from instruction (T.K. v. New York City Dep't of Educ., 810 F.3d 869, 878 [2d Cir. 2016] [reversing the administrative hearing officers who found that the related services at a unilateral placement were inadequate when the totality of the evidence demonstrated it was appropriate and would enable the student to make progress]; Frank G., 459 F.3d at 364). As a corollary, it necessarily follows that a lack of evidence as to how a student's significant area of need is addressed by the unilateral placement can result in a finding that the unilateral placement is not appropriate (see R.S. v. Lakeland Cent. Sch. Dist., 2011 WL 1198458, at *5 [S.D.N.Y. Mar. 30, 2011] [finding a unilateral placement was not appropriate where it was undisputed that speech-language therapy was "critical" to remediate the student's language needs, the private placement chosen by the parents did not provide speech-language therapy and, although the parents claimed the student received private speech-language therapy, they "did not offer any evidence as to the qualifications of the provider of the therapy, the focus of the therapy, or when and how much therapy was provided")], aff'd, 471 Fed. App'x 77 [2d Cir. Jun. 18, 2012]; see also L.K. v. Northeast Sch. Dist., 932 F. Supp. 2d 467, 490 [S.D.N.Y. 2013] [finding that the parent failed to prove that the unilateral placement addressed the student's considerable social/emotional needs absent testimony from the student's counselor, evidence concerning the counselor's "qualifications, the focus of her therapy, or the type of services provided" or how the services related to the student's unique needs]).
Here, while the student's significant need for full-time paraprofessional support, including for his safety, is amply demonstrated by the record and was recommended by both the district and iBrain for his time at school and as part of his special transportation services, the record is entirely devoid of any evidence that the unilateral placement, which included the special transportation services provided by Sisters, addressed his needs, including safety needs, for paraprofessional support during transportation.
Thus, the district correctly argues in its cross-appeal that the parent did not meet her burden to demonstrate, under the particular facts of this case and the totality of the circumstances, that the unilateral placement, which was inclusive of both the student's attendance at iBrain and the provision of special transportation services by Sisters, was appropriate. As a result, the IHO's determination that the parent's unilaterally obtained placement and services for the student were appropriate must be reversed.
C. Independent Educational Evaluation (IEE)
The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).[12]
If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]).
The IHO found that the parent disagreed with the district's recent evaluation and requested an independent neuropsychological evaluation of the student (IHO Decision at p. 23). The IHO further found that the district's argument that the parent was required to disagree with a specific district evaluation to be without merit (id. at pp. 23, 25). Next, the IHO determined that the district did not initiate an impartial hearing to establish that its evaluation was appropriate or provide funding for an independent neuropsychological evaluation (id. at p. 25). The IHO then found that the parent was entitled to an independent neuropsychological evaluation at public expense (id.).
In its cross-appeal, the district first sets forth the statutory and regulatory requirements for obtaining an IEE at public expense as outlined above, and simply states that "the record shows ample and current evaluations and reports on [the s]tudent for the CSE team's recommendation" (Answer and Cr. Appeal 32). However, the district’s statement fails to grapple with the plain text of the statute and regulations. As the IHO found, "the [district] did not initiate an impartial hearing to establish that its evaluation of the [s]tudent was appropriate and it did not, without unnecessary delay, take any action to ensure that the independent neuropsychological evaluation requested by the [p]arent was conducted at public expense" (IHO Decision at p. 25).
The district does not dispute that the parent requested an IEE, thus the district was required to defend its evaluation of the student. The district school psychologist testified that in preparation for the November 2023 CSE, she reviewed the student's existing assessments and other materials including the October 2023 iBrain education plan (Dist. Ex. 9 ¶ 8). The hearing record included a November 2022 district psychological update (Dist. Ex. 7). The November 2023 IEP indicated that the CSE relied on assessments conducted by iBrain and reported in the October 2023 iBrain education plan (Parent Ex. C at p. 1). A June 11, 2024 prior written notice indicated that the November 2023 CSE relied on the iBrain report and education plan, "updated information on levels, goals, etc." dated October 26, 2023 (Dist. Ex. 4 at p. 3). Neither the November 2023 IEP nor the June 11, 2024 prior written notice indicate that the CSE considered the November 2022 district psychological update in the development of the November 2023 IEP. The district school psychologist appeared for cross-examination during the impartial hearing. The district's attorney was given the opportunity to ask additional questions of the school psychologist to supplement her direct testimony by affidavit, however, he declined to do so (Sept. 25, 2024 Tr. p. 29). On cross-examination, the school psychologist acknowledged that she never evaluated, formally observed or met the student (Sept. 25, 2024 Tr. p. 29). The school psychologist further testified that all of the assessment data listed in the November 2023 IEP had been provided by iBrain and that she "d[id]n't know when the last time the student was evaluated by the [district] was" (Sept. 25, 2024 Tr. p. 34). The school psychologist was asked if the statement in her affidavit testimony that she "reviewed the student's existing assessments," referred to the iBrain evaluative data (id.). In response, she stated that she did not recall what she was referencing and that it was possible she reviewed other assessments accessible through the district's online record, however she did not recall if she had (id.). The school psychologist further testified that the majority of the information listed in the present levels of educational performance in the November 2023 IEP "came from the reports generated by the school personnel that worked directly with the student" (Sept. 25, 2024 Tr. p. 35).
Although the hearing record included a November 2022 district psychological update, there is no evidence in the hearing record that the November 2023 CSE considered it in the development of the November 2023 IEP. There is also no evidence in the hearing record that the district conducted any evaluations of the student since November 2022. For purposes of assessing the parent's request for an IEE, it was incumbent upon the district, at a minimum, to demonstrate that it had evaluated the student and considered the results of its last evaluation. Having failed to do so, the hearing record cannot support a finding that the district defended its evaluation. Thus, the IHO correctly determined that the parent was entitled to an independent neuropsychological evaluation at public expense.
VII. Conclusion
Based on the foregoing, there is no basis to disturb the IHO's determinations that the district failed to offer the student a FAPE for the 12-month, 2024-25 school year or his award of an independent neuropsychological evaluation at public expense to the parent. However, having found that the record does not support a finding that iBrain and Sisters constituted an appropriate unilateral placement for the 12-month, 2024-25 school year for the student, the IHO's finding to the contrary must be reversed and there is no need to determine whether equitable considerations weighed in favor of the parent's requested relief.
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision dated March 23, 2025 is modified by reversing those parts which found that the parent's unilateral placement, inclusive of iBrain and Sisters, was appropriate and awarded funding for the cost of the student's tuition and related costs at iBrain and for the partial cost of the student's transportation to and from iBrain by Sisters.
Dated: May 29, 2026
Carol H. Hauge
STATE REVIEW OFFICER
Footnotes
[1] According to the due process complaint notice, the student began attending iBrain in 2022; however, the hearing record reflects that the student was attending a district specialized school as of November 22, 2022 (compare Parent Ex. A at p. 3, with Dist. Ex. 7 at p. 1). In addition, the iBrain educational plan includes assessment information reportedly conducted by iBrain in March 2023 and July 2023 (Parent Exs. B at pp. 3, 4, 13; C at p. 1).
[2] 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).
[3] The student's eligibility for special education as a student with a traumatic brain injury is not in dispute (see 34 CFR 300.8[c][12]; 8 NYCRR 200.1[zz][12]).
[4] The due process complaint notice stated that equitable considerations favored a full award of tuition, related services, special transportation and nursing (Parent Ex. A at p. 7). However, there is no evidence in the hearing record that the student received nursing services from iBrain, and funding for 1:1 nursing services was not among the parent's requested relief (id. at p. 8).
[5] The hearing record includes transcripts that were not consecutively paginated. The transcripts for an August 19, 2024 prehearing conference and for impartial hearing dates held on September 25, 2024, and on October 9, 2024 were consecutively paginated. However due to an apparent change in transcription service providers, the October 24, 2024 impartial hearing date begins with page 1. For the purpose of clarity, the transcripts will be cited by date and corresponding page number in this decision.
[6] On September 10, 2024, the district moved to dismiss the matter due to the parent's failure to participate in a resolution meeting; the parent submitted a response dated September 16, 2024. It is unclear from the hearing record whether the IHO addressed the district's motion.
[7] 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).
[8] In its cross-appeal, the district sets forth additional grounds to establish that the student was offered a FAPE for the 2024-25 school year (Answer and Cr.-App. ¶¶ 9-20). Nevertheless, it is unnecessary to address those grounds as the CSE's failure to recommend a 6:1+1 special class resulted in a substantive denial of a FAPE to the student.
[9] The hearing record also included 2023-24 iBrain quarterly progress reports dated October 6, 2023, January 5, 2024, and April 12, 2024 (Parent Exs. D-F).
[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]).
[11] For preschool students with disabilities "[t]he municipality in which a preschool student resides is responsible to provide suitable transportation, as determined by the board of education" ("Reimbursement to Counties for Transportation Costs for Preschool Students with Disabilities [Revised from June 2002]," Office of Special Educ. Memo [August 2011], available at https://www.p12.nysed.gov/specialed/publications/preschooltrans-811.pdf)
[12] Guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, "the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs" (Letter to Baus, 65 IDELR 81 [OSEP 2015]; see Letter to Carroll, 68 IDELR 279 [OSEP 2016]).