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Special Education Law
OSRMixed ResultAppeal No. 25-273

Application of a Student with a Disability

March 31, 2026·Sarah L. Harrington·New York City Department of Education

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-273

Application of a STUDENT WITH A DISABILITY, by his 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 & Freedom Legal Group, attorneys for petitioners, by Richa Raghute, Esq.

Liz Vladeck, General Counsel, attorneys for respondent, by Jeremy S. Ribakove, 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 that respondent (the district) fund the costs of their son's tuition at the International Academy of the Brain (iBrain) and related expenses for the 12-month, 2024-25 school year.  The district cross-appeals from the IHO's interim decision on pendency.  The appeal must be sustained in part.  The cross-appeal must be dismissed.  The matter must be remanded to the IHO for further proceedings.

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 parties' familiarity with this matter is presumed and, therefore, the detailed facts and procedural history of the case and the IHO's decision will not be recited here in detail.  In addition, the student was the subject of prior State-level appeals involving a unilateral placement at iBrain for the 2021-22, 2022-23, and 2023-24  school years; accordingly, the parties' familiarity with the student's educational history leading up to those prior matters is also presumed (see Application of a Student with a Disability, Appeal No. 24-409; Application of a Student with a Disability, Appeal No. 23-310; Application of a Student with a Disability, Appeal No. 23-299; Application of a Student with a Disability, Appeal No. 22-025).[1]

The student in this matter was 20-years old leading into the 2024-25 school year and has received diagnoses of cerebral palsy, hydrocephalus, a seizure disorder, and dystonia; is legally blind; and uses a gastrostomy tube (g-tube) (Parent Ex. H ¶ 3, Dist. Exs. 6 at p. 2; 27 at p. 1; see also Dist. 26).  The student presents with significant delays across all domains, is non-verbal and non-ambulatory (Parent Ex. H ¶ 4; see also Dist. Exs. 17; 27 at p. 1).

By meeting notices dated January 25, 2024, and March 4, 2024, the parents were invited to attend CSE meetings scheduled for February 1, 2024, and March 13, 2024, respectively (Dist. Exs. 11 at p. 1; 12 at p. 1).  The hearing record reflects that both CSE meetings were rescheduled at the request of the parents (Dist. Exs. 13 at pp. 1-3; 14 at pp. 1-2).  By meeting notice dated March 28, 2024, the parents were invited to attend a CSE meeting sceduled for April 12, 2024 (Dist. Ex. 15 at p. 1).[2]

On April 12, 2024, a CSE convened for an annual review and developed an IEP for the student with a projected implementation date of April 29, 2024 (Dist. Ex. 20).[3]  The CSE determined the student remained eligible for special education services as a student with a traumatic brain injury and recommended the student receive 12-month services consisting of a 6:1+1 special class placement along with three periods per week of adapted physical education, four 60-minute sessions per week of individual occupational therapy (OT), five 60-minute sessions per week of individual physical therapy (PT), four 60-minute sessions per week of individual speech-language therapy, one 60-minute session per week of group speech-language therapy, and three 60-minute sessions per week of vision education services (id. at pp. 1, 47-48, 52-53). In addition, the CSE recommended that the parent receive one 60-minute session per month of parent counseling and training (id. at pp. 47, 53).  The CSE also recommended the student receive the support of an individual health paraprofessional and be provided with a dynamic display speech generating device and assistive technology services (id. at p. 48).  The CSE recommended special transportation accommodations including transportation from the closest safe curb location to school, adult supervision in the form of a 1:1 paraprofessional, and a lift bus that could accommodate a regular size wheelchair (id. at pp. 51-52, 54).

In a letter dated June 14, 2024, the parents advised the district, through counsel, that they were rejecting the most recently "proposed [district IEP], recommended program and school placement" for the 12-month, 2024-25 school year (Parent Exhibit A-A at p. 1).[4]  The parents stated that the district's recommended program failed to offer the student a free appropriate public education (FAPE) in addition to alleging that the district failed to provide the parents with a school location letter (id.).  The parents alleged that the proposed placement was inappropriate due to class size ratio, functional and academic grouping, and staffing, among other reasons (id. at p. 2).  The parents also expressed concern with the "physical structure and facility of the proposed school location," asserting it was not appropriate to meet the student's individual needs (id.).

The district summarized its recommendations in a prior written notice dated June 14, 2024 (Dist. Ex. 23 at pp. 1-7). The district also advised the parents of the public school site to which the student had been assigned to attend (Dist. Ex. 24 at pp. 1-2). Subsequently, on September 16, 2024, the parents agreed to an amendment of the IEP without a meeting to include recommendations for 1:1 nursing services during transportation and for limited travel time (Dist. Exs. 28 at p. 1; 29 at pp. 51-52).[5]

The evidence in the hearing record indicates that, on October 7, 2024, the student's father electronically signed an "Annual Enrollment Contract" with iBrain for the student's attendance during the 2024-25 school year (October 9, 2024 through June 26, 2025) (Parent Ex. A-E at pp. 22, 1, 6).  In addition, both parents' names appear on a "Nursing Service Agreement" with "B&H Health Care Services, Inc. – DBA Park Avenue Home Care, [LLC]" (B&H Health Care) to deliver nursing services to the student during the 2024-25 school year (October 9, 2024 through June 26, 2025) (Parent Ex. A-G at pp. 1, 6).  The hearing record further reflects that, on September 30, 2025, the student's father also electronically signed a "School Transportation Annual Service Agreement" with "Sisters Travel and Transportation Services, LLC" (Sisters Travel) to provide round-trip transportation services for the student during the 2024-25 school year (October 9, 2024 through June 26, 2025) (Parent Ex. A-F at pp. 1, 6-7).

A. Due Process Complaint Notice

In a due process complaint notice dated December 16, 2024, the parents alleged that the district denied the student a 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 parents 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 parents the opportunity to participate in the CSE process and predetermined the outcome of the April 2024 CSE meeting; and that the April 2024 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 a 1:1 nurse, music therapy, or hearing education services, and failed to recommend necessary special transportation accommodations (id. at pp. 6-8).

The parents sought an interim order on pendency and, for relief, requested that the district directly fund iBrain for the student's tuition in addition to the costs of his related services, including both 1:1 nursing services and a travel nurse "pursuant to the Nursing Services Agreement"; directly or prospectively fund the costs of the student's special education transportation services "in accordance with the terms of the transportation agreement"; fund the costs of an independent educational evaluation (IEE) consisting of a neuropsychological evaluation; and reconvene and reevaluate the student (id. at pp. 9-10).

B. Impartial Hearing Officer Decision

An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over this matter on December 20, 2024 (IHO Decision at p. 3).  The IHO issued an interim decision on pendency on January 9, 2025 (Interim IHO Decision).  The document signed by the IHO was initially prepared by the parents' counsel on December 17, 2024, and stated that the student's right to pendency began on October 9, 2024 (id.; see Parent Ex. A-B).  The interim IHO decision further reflected that the student's pendency services were based on a previous SRO decision dated February 16, 2024, and that the student was entitled to 12-month services consisting of enrollment at iBrain, as well as special transportation from Sisters Travel and individual nursing services from B&H Health Care (Interim IHO Decision).

The parties convened for a prehearing conference on January 22, 2025 (Jan. 22, 2025 Tr. pp. 1-24).  The parties reconvened for an impartial hearing on February 18, 2025, which concluded on March 6, 2025, after four days of proceedings (Feb. 18, 2025 Tr. pp. 25-82; Feb. 26, 2025 Tr. pp. 83-185; Feb. 27, 2025 Tr. pp. 186-269; Mar. 6, 2025 Tr. pp. 186-302).

In a decision dated April 3, 2025, the IHO found that the district offered the student a FAPE for the 12-month, 2024-25 school year and denied the parents' request for direct funding for the cost of the student's attendance at iBrain, including transportation and nursing services (IHO Decision at pp. 4, 15).

At the outset the IHO summarized the procedural history and her factual findings, noting that the student's classification and entitlement to special education services were not in dispute (IHO Decision at pp. 5-8).  The IHO held that "the [district] addressed and sustained its burden" and demonstrated that it provided the student with a FAPE for the 2024-25 school year (id. at p. 8).  The IHO indicated that the CSE convened timely and created an IEP that was "specifically designed to meet the unique needs of [the student]" (id.).  The IHO found that the parents' argument that the district's procedural violations amounted to a denial of FAPE was not supported by the hearing record, noting that the district had provided the parents with a timely prior written notice and school location letter (id.).  The IHO did not find the testimony of the student's father to the contrary to be credible, citing "inconsistencies in [the father's] testimony" (id.).

The IHO found the parents contributed to a delay in holding the CSE meeting and did not provide necessary documentation, including the necessary medical authorization forms, which indicated the district had acted in good faith procedurally to provide the student a FAPE (IHO Decision at p. 9).  Substantively, the IHO found that the district's lack of a recommendation for 1:1 nursing services during transportation and during the school day were appropriate as the hearing record indicated the required medical authorization form was not available to the April 2024 CSE (id. at p. 11).  The IHO reasoned that the CSE could not determine whether transportation and school-based nursing services were appropriate or not without the missing documentation and that the district would have amended its recommendation to include 1:1 nursing services during transportation and during the school day had the parents provided the medical authorization form (id.).  Likewise, the IHO also held the district's actions were justified in its recommendation for a health paraprofessional for transportation services for the same reason, however, she acknowledged that the parents provided the required medical forms to have the transportation recommendation amended to include a 1:1 nurse for transportation to and from the school (id.).  On the issue of hearing education services and music therapy, the IHO determined that the parents failed to offer any evidence that either of the services would address the student's specific needs and that, therefore, the district was sufficiently justified in omitting those services from its recommended program (id. at pp. 13-14).

The IHO concluded that the district was "not obligated to recommend the best placement or a perfect placement" for the student (IHO Decision at p. 14).  The IHO declined to award the parents' requested relief and did not reach the issue of the appropriateness of the unilateral placement or whether equitable considerations warranted a reduction in the parents' requested relief (id.).  Having found the district offered the student a FAPE, the IHO determined that the parents were not entitled to tuition funding for the cost of the student's attendance at iBrain (id. at p. 15).

IV. Appeal for State-Level Review

The parents appeal and argue that the IHO erred in determining that the district met its burden to prove that it offered the student a FAPE for the 12-month, 2024-25 school year.  In particular, the parent assert that the district did not prove that it sent the parent a prior written notice and school location letter in a timely manner.  Regarding the April 2024 CSE and resultant IEP, the parents argue that the district failed to recommend 1:1 nursing services during the school day and during transportation while acknowledging that such services were necessary.  Moreover, the parents argue that the district failed to recommend the hearing education services, music therapy, and additional transportation accommodations, which were required to offer the student a FAPE.  The parents also request findings: (1) that iBrain was an appropriate unilateral placement for the student; (2) that equitable considerations favored the parents' claim for district funding of tuition, related services and transportation for the 12-month, 2024-25 school year; and (3) that the parents were entitled to their requested relief.

In an answer and cross-appeal, the district alleges that the IHO correctly found that it met its burden to prove that it offered the student a FAPE but improperly excluded evidence at the impartial hearing, improperly limited the scope of the district's cross-examination of the student's father, and abused her discretion in issuing an interim decision on pendency with a start date of October 9, 2024, despite that the parents' due process complaint notice was filed on December 16, 2024.

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]).[6]

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. Scope of Review—Pendency

The district argues in its cross-appeal that the IHO abused her discretion by issuing a pendency order that contravened established law.  As noted above, the parents' counsel prepared a pendency order for the IHO to sign that asserted the student's right to pendency began on October 9, 2024, rather than on the date the due process complaint notice was filed, which was December 16, 2024.  The district alleges that the IHO signed the order without correcting the effective date of pendency and refused to correct the order when the error was brought to her attention.

While State-level administrative review of this matter was still pending, the parents commenced an action against the district in the United States District Court for the Southern District of New York seeking an order confirming the student's educational placement at iBrain for the 12-month, 2024-25 school year and funding for tuition and related services pursuant to the pendency provision of the IDEA (20 U.S.C. § 1415[j]; see Z. v. Aviles-Ramos, 2025 WL 3225016, at *1 [S.D.N.Y. Nov. 18, 2025]).

According to the District Court's decision, the district "ha[d] made all pendency payments for the period of time beginning when [the parents] initiated the underlying administrative proceedings through the end of the school year" (Z., 2025 WL 3225016, at *1, *3).  The District Court further stated that "[t]he only live issue remaining in th[e] case [wa]s whether [the parents we]re entitled to costs incurred prior to the date they first brought an administrative challenge with respect to the adequacy of [the student]'s education for the 2024-25" school year (id.).

The District Court rejected the parents' arguments in support of enforcing the IHO's January 9, 2025 interim decision on pendency, finding that the parents failed to engage with existing Second Circuit binding precedent, that the doctrine of res judicata did not apply, and that a 10-day notice letter did not initiate due process proceedings (Z., 2025 WL 3225016, at *4-*5).  Specifically, the District Court relied on the Second Circuit's holding that "an agency's obligation to begin pendency payments starts when a parent files a [due process complaint notice]" (id. at *4, citing Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 455-56 [2d Cir. 2015]).  The District Court rendered its decision on the parents' enforcement action on November 18, 2025, at which time the parties agreed that the district had fulfilled its pendency obligations from December 16, 2024 through the end of the 2024-25 school year.  Thus, the district's cross-appeal of the IHO's pendency order has been resolved by the doctrine of law of the case and will not be addressed further.

The next issue to be addressed in this matter is whether the IHO correctly found that the district offered the student a FAPE for 12-month, 2024-25 school year.  It is to this issue that I now turn.

B. FAPE—April 2024 IEP

In her decision, the IHO discussed "four specific areas on [the s]tudent's IEP" that the parents found objectionable, "hearing education services, transportation, 1:1 health paraprofessional, and music therapy" (IHO Decision at p. 9).  The IHO found the testimony of the district's school psychologist to be credible, stating that she "offered a cogent and responsive reason for why the CSE recommended the 1:1 health paraprofessional instead of a 1:1 nurse, transportation services as outlined in [the s]tudent's IEPs, and why the CSE did not recommend hearing education services and music therapy" (id. at p. 10).  The IHO credited the testimony of the school psychologist who repeatedly stated that "specific recommendations were mentioned because they were discussed at the meetings and considered but were [iBrain] recommendations that the CSE disagreed with" (id.).

The April 2024 IEP included the student's present levels of performance in music therapy (Dist. Ex. 20 at p. 16).  However, the IEP also included a statement that iBrain had "provided an update and recommendation for [the] continuation of school based music therapy to target the goals specified in the report" (id. at p. 18).  The IEP further indicated that "[m]usic therapy [wa]s not being recommended as part of the current . . . IEP mandates," noting that the "present levels and goals [we]re in the draft report provided by [iBrain] but [we]re not included in th[e] IEP" and that "[t]he team discussed that music c[ould] be used as an instructional tool to support with engagement throughout the school day" (id.).[7]

Turning to hearing education services, the April 2024 IEP recited the student's present levels of performance in hearing education and iBrain's recommendations (Dist. Ex. 20 at pp. 17, 24).  As was the case with the parents' request for music therapy, the April 2024 IEP included an explanation for why hearing education services were not recommended (id. at pp. 27-28).  The April 2024 IEP included a statement that "hearing education services were not initiated on this IEP" and that iBrain was using hearing education services "as part of a total communication program to teach sign language as a method of communication" (id.).[8]  The April 2024 IEP further indicated that generally hearing education services were recommended for students "with hearing loss who require intervention related to that documented hearing loss" (id. at p. 28).

Although the IHO did not reference the specific language in the April 2024 IEP when finding that the district "offered a cogent and responsive reason for why the CSE" made its recommendations, the hearing record supports her determinations that the student did not require music therapy or hearing education services to receive a FAPE.  The Second Circuit has held that a CSE is not required to recommend music therapy or hearing education services in order to offer a student a FAPE when the student's needs addressed by music therapy can be addressed through other services recommended in the IEP (Ambrister v. Banks, 2025 WL 2775936, at *3 [2d Cir. Sept. 30, 2025]; Cruz v. Banks, 134 F.4th 687, 694 [2d Cir. 2025]).

Nevertheless, the April 2024 IEP did not include a cogent explanation for the failure to recommend 1:1 nursing services in school and during transportation.  Generally, a student who needs school health services[9] or school nurse services[10] to receive a FAPE must be provided such services as indicated in the student's IEP (see School Health Services and School Nurse Services, 71 Fed. Reg. 46,574 [Aug. 14, 2006]; see also 34 CFR 300.34[a], [c][13]; 8 NYCRR 200.1[qq], [ss]; Cedar Rapids Community Sch. Dist. v. Garret, 526 U.S. 66, 79 [1999] [indicating that school districts must fund related services such as continuous one-on-one nursing services during the school day "in order to help guarantee that students . . . are integrated into the public schools"]).  State guidance indicates that, in determining whether a student needs a 1:1 nurse, a CSE must obtain evaluative information in all areas of the student's disability or suspected disability; generally, it is expected that "[t]his information may include information from a physician, such as a written order to the school nurse from a student's health care provider" ("Guidelines for Determining a Student with a Disability's Need for a One-to-One Nurse," at p. 2, Office of Special Educ. Mem. [Jan. 2019], available athttps://www.nysed.gov/sites/default/files/programs/special-education/guidelines-for-determining-a-student-with-a-disability-need-for-a-1-1-nurse.pdf).  In providing school nurse services, "the school remains responsible for the health and safety of the student and ensuring the care provided to the student is appropriate and done in accordance with healthcare provider orders" ("Guidelines for Determining a Student with a Disability's Need for a One-to-One Nurse," at p. 5).  However, there is also State guidance indicating that "[i]f the CSE/CPSE determine that a student's health needs in accordance with provider orders for treatment can be appropriately met by the school's building nurse, a shared nurse, [or] a 1:1 aide to monitor and alert the school nurse, then a 1:1 nurse is not necessary" ("Provision of Nursing Services in School Settings - Including One-to-One Nursing Services to Students with Special Needs," at pp. 11-12, Office of Student Support Servs., [Jan. 2019], available athttps://www.nysed.gov/sites/default/files/programs/student-support-services/nursing-one-to-one-nsgqa.pdf).  To determine whether a student requires the support of a full-day, continuous 1:1 nurse, State guidance indicates the CSE "must weigh the factors of both the student's individual health needs and what specific school health and/or school nurse services are required to meet those needs" and provides the following set of factors to consider when making that determination:

  • The complexity of the student's individual health needs and level of care needed during the school day to enable the student to attend school and benefit from special education;
  • The qualifications required to meet the student's health needs;
  • The student's proximity to a nurse;
  • The building nurse's student case load; and,
  • The extent and frequency the student would need the services of a nurse (e.g., portions of the school day or continuously throughout the day).

("Guidelines for Determining a Student with a Disability's Need for a One-to-One Nurse," at pp. 2-3).  State guidance provides that specific nursing tasks may only be performed by registered professional nurses (RN) or licensed practical nurses (LPN) under the direction of an RN, physician, nurse practitioner, or physician assistant ("Provision of Nursing Services in School Settings – Including One-to-One Nursing Services to Students with Disabilities," at pp. 14-15).

The student's April 2024 IEP noted, among other things, that the student was diagnosed with cerebral palsy, had asthma and a seizure disorder, and also had a shunt and a G-tube (Dist. Ex. 20 at p. 52).  The IEP indicated that the student had a 1:1 nurse who was "essential to his daily needs of feeding and [maintaining] seizure protocol[s]" (id. at pp. 4, 10, 20).  The nurse also monitored the student's shunt, as well as his ostomy site and "stay[ed] vigilant for signs of infection, leakage, and provid[ed] necessary dressings and intervention" (id. at pp. 4, 20).  The IEP indicated that aspiration protocols needed to be followed with the student and that frequent skin checks and repositioning needed to be performed (id. at p. 6).  In addition, fall precautions needed to be in place (id.).  Notably, the IEP stated that the student "need[ed] a 1:1 nurse for management of his medical needs" (id. at p. 28).

A review of the hearing record shows that the student's need for school-based nursing services was well documented and known by the April 2024 CSE.  According to the district school psychologist, iBrain provided information that indicated personnel felt the student required a 1:1 nurse based off their assessments and data (Feb. 26, 2025 Tr. p. 121).  In addition, she noted that during the CSE meeting "it was requested that [the CSE] consider initiation of 1:1 nursing" (Feb. 26, 2025 Tr. p. 121; see Dist. Ex. 20 at p. 54).  The school psychologist further explained that the parents were informed during the CSE meeting that additional documentation was required in order for the CSE to recommend 1:1 nursing as a specific service on an IEP (Feb. 26, 2025 Tr. p. 121).  She testified that she did not know if the CSE "had the necessary forms for us to consider it" (id.).  The April 2024 IEP reflected that "the parent advocate noted [the student] require[d] a 1:1 nurse for transportation and in school" and that the "team discussed the medical forms" which were then "sent to the parent for completion" (Dist. Ex. 20 at p. 54).  The school psychologist further clarified that the CSE did not make a determination as to whether or not the student required 1:1 nursing services, but instead, did not recommend the service because it did not have the documentation from the parent required to initiate it (Feb. 26, 2025 Tr. p. 121).

However, this is not the process called for under IDEA because it is the CSE that is required to make the determination of which services should be placed on a student's IEP and it is the district's responsibility to ensure that the CSE has sufficient information about the student's needs and that individuals who can make appropriate decisions are part of the CSE process.  Placing the onus on the parent, rather than the district, to obtain the required medical forms is problematic since the district may not delegate its responsibilities to the student under IDEA to the parents (see 8 NYCRR 200.4[b][3]).  The district members of the CSE in this case failed to appreciate that they were the individuals responsible to determine whether the student needed nursing services in order to receive a FAPE.  A district is authorized to conduct necessary medical assessments in order to provide appropriate special education programming to a student with a disability (see Shelby S v. Conroe Indep. Sch. Dist., 454 F.3d 450, 454 [5th Cir. 2006]).[11]

Based on the foregoing, the CSE's failure to recommend any nursing services did not align with the present levels of performance in the April 2024 IEP, which indicated the student required medical services beyond those that could appropriately be delivered by a paraprofessional.  Additionally, part of the district's refusal to include the recommendation in the IEP was based on the parents' failure to submit medical accommodation forms.  In doing so, the district improperly placed the burden to obtain medical forms on the parents (see "Guidelines for Determining a Student with a Disability's Need for a One-to-One Nurse," at p. 2 [referring to the district's obligation to evaluate the student in all areas of disability or suspected disability and noting that this "may include information from a physician, such as a written order to the school nurse from a student's health care provider"] [emphasis added]).

As a result of the foregoing, the IHO's determination that the district offered the student a FAPE for the 2024-25 school year must be reversed.[12]

C. Remand

Having found that the district failed to offer the student a FAPE, the next issues to be discussed are whether iBrain was an appropriate unilateral placement for the student for the 2024-25 school year, and whether equitable considerations warrant a reduction in the amount of funding requested by the parents.

As the IHO determined that the district offered the student a FAPE for the 2024-25 school year, she declined to address the appropriateness of iBrain as a unilateral placement (IHO Decision at p. 14).  When an IHO has not addressed claims set forth in a due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]).  Here, as the IHO has not yet ruled on whether the parent met her burden to prove that the unilateral placement was appropriate or whether equitable considerations would support the parent's request for relief, I will remand the matter to the IHO to address these issues in the first instance.

With that said, it is necessary to briefly address the district's allegations that the IHO improperly limited the district's ability to present evidence and pursue cross-examination relevant to the appropriateness of iBrain and equitable considerations.

State regulations set forth the procedures for conducting an impartial hearing and address, in part, minimal process requirements that shall be afforded to both parties (8 NYCRR 200.5[j]).  Among other process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]).  Furthermore, each party "shall have up to one day to present its case" (8 NYCRR 200.5[j][3][xiii]).  State regulation further provides that the IHO "shall exclude any evidence" that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" and "may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c], [d]).  State regulation further provides that parties to the proceeding may be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities, that an IHO may assist an unrepresented party by providing information relating only to the hearing process, and that nothing contained in the cited State regulation shall be construed to impair or limit the authority of an IHO to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record (see 8 NYCRR 200.5[j][3][vii]).

The district argues that the IHO impermissibly limited the admission of evidence on the basis that the parents were only seeking recovery after the student was enrolled at iBrain on October 9, 2024.  On the first impartial hearing date, the parents' attorney objected to the district's proposed exhibit 2, which was a July 19, 2024 10-day notice letter (Feb. 18, 2025 Tr. pp. 29-30, 33-34).  The parents' attorney argued that the 10-day notice letter was prepared by a different law firm and that the parents were "not seeking relief from the period prior to October 9th of enrolling at iBrain"; that, after enrollment, "Liberty & Freedom ha[d] represented them going forward, and th[at] 10-day notice [wa]s not relevant to the time in which the parent[s were] requesting relief"; that "[i]t would muddy up the issues, confuse things, and only, only speak to how irrelevant it [wa]s"; and that it was "outside of the scope of these proceedings and serves no probative value" (Feb. 18, 2025 Tr. pp. 33-34).[13]  The district's attorney asserted that the parents' attorney's arguments could also apply to the June 14, 2024 10-day notice that the parents' offered into evidence; that the parents only claimed that they were seeking funding for the period of enrollment at iBrain, rather than the entirety of the 12-month, 2024-25 school year, once they received the district's objections to their documentary evidence in February 2025; and that the student's educational history, including whether the student attended another school or whether the parents considered enrolling the student at another school during the 12-month, 2024-25 school year was relevant to the proceedings (Feb. 18, 2025 Tr. pp. 34-37).  Following the parties' arguments, the IHO sustained the parents' objection and excluded the district's proposed exhibit 2 (Feb. 18, 2025 Tr. pp. 37-38).

Similarly, the district argues in its cross-appeal that the IHO limited the scope of the district's cross-examination including certain aspects of the parents' decision to unilaterally place the student, which the district argued would be relevant to the IHO's determination of the appropriateness of the unilateral placement (see Feb. 26, 2025 Tr. pp. 146-48; Feb. 27, 2025 Tr. pp. 202-19).

Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]).  At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (id.).  State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.  Also, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the IHO regarding the conduct of the impartial hearing (see Application of a Student with a Disability, Appeal No. 14-090; Application of a Student with a Disability, Appeal No. 09-073; Application of a Child with a Disability, Appeal No. 05-026; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-061).

Upon reviewing the hearing record, I find that, although the IHO limited the evidence, the district was permitted enough leeway to establish the factual circumstances whereby the student was originally enrolled at a different unilateral placement for the beginning of the 2024-25 school year, including through the testimony of the student's father and the district school psychologist (see Tr. pp. 205-06; Dist. Ex. 3 ¶¶ 26, 29-30).  The IHO retains broad discretion in the efficient conduct of the hearing and to set reasonable directives for the conduct of the impartial hearing, and the hearing record does not reflect that the IHO abused her discretion in this regard.  Nevertheless, as the matter is being remanded to the IHO, I will leave it to her sound discretion as to whether to re-open the hearing record to allow additional evidence or argument regarding the appropriateness of iBrain and equitable considerations.  Upon remand, the IHO may also consider the district's argument that the IHO should take an adverse inference given the lack of responses from iBrain, B&H Health Care, and Sisters Travel to signed subpoenas.  The IHO may find it appropriate to schedule a prehearing conference with the parties to, among other things, simplify and clarify the issues left to be resolved at the hearing (see 8 NYCRR 200.5[j][3][xi][a]).

VII. Conclusion

Review of the hearing record does not support the IHO's determination that the district offered the student a FAPE for the 2024-25 school year.  As the IHO did not address the appropriateness of the parents' unilateral placement or equitable considerations, this matter is remanded to the IHO to make determinations on these issues.

I have considered the remaining contentions and find it is unnecessary to address them in light of my determinations above.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision, dated April 3, 2025, is modified by reversing that portion which found that the district offered a FAPE to the student for the 2024-25 school year; and

IT IS FURTHER ORDERED that the matter is remanded to the IHO to determine whether the parents' unilateral placement was appropriate for the student for the 2024-25 school year and whether equitable considerations weigh in favor of granting funding for the costs of tuition or related expenses.

Footnotes

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

[2] The hearing record includes a CSE meeting attendance sheet and CSE meeting minutes dated April 12, 2024 (Dist. Exs. 16 at p. 1; 19 at pp. 1-5).  In her affidavit in lieu of direct testimony, the district school psychologist, who also served as the district representative on the CSE, indicated that the CSE meeting, scheduled for March 13, 2024 at 12:30 p.m., was cancelled by iBrain's deputy director of special education at 12:34 p.m. on March 13, 2024 (Dist. Ex. 3 ¶¶ 11, 12; see Dist. Ex. 14 at pp. 1-2).  It appears that the documents that were prepared in advance of the March 13, 2024 CSE meeting were never revised to reflect that the CSE meeting subsequently occurred on April 12, 2024, and documents continued to reference March 13, 2024 as the date that the IEP was developed (Parent Ex. D at pp. 73, 76; Dist. Exs. 20 at pp. 52, 54; 21 at pp. 45, 47; 23 at pp. 1, 5, 9, 13; 24 at pp. 1, 4; 28 at pp. 1, 3; 29 at pp. 52, 55; see IHO Decision at p. 6).  For the purpose of clarity in this decision, the challenged IEP for the 2024-25 school year will be referenced as the April 12, 2024 IEP.

[3] The hearing record contains some duplicative exhibits.  Parent exhibit D and district exhibit 20 are IEPs identical in content and both documents are dated March 13, 2024, as described above.  The district's exhibit list states that district exhibit 20 is an April 12, 2024 IEP, while the parents' exhibit list states that parent exhibit D is a March 13, 2024 IEP.  For purposes of this decision, when referring to the April 2024 IEP, the district's exhibit will be cited.  In addition, the hearing record also contains a duplicate copy of the parents' 10-day notice letter (compare Parent Ex. A-A, with Dist. Ex. 1).  The exhibits appear identical in content and for purposes of this decision, only the parents' exhibit will be cited.  The IHO is reminded that it is her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).

[4] Parent exhibit A, which is the parent's due process complaint notice, included several attachments.  The due process complaint notice and attachments are all marked as exhibit A; however, the attachments are additionally marked as exhibits A through G (not to be confused with those parent exhibits with the same letter designations separately entered into evidence).  For purposes of this decision, reference to the documents that were attached to the parent's due process complaint notice will be cited by reference to parent exhibit A followed by reference to the exhibit designation of the attachment (i.e., Parent Ex. A-C represents the attachment marked as exhibit C to the parent's due process complaint notice).

[5] According to the district's exhibit list, district exhibit 29 is a September 17, 2024 IEP.  Consistent with the agreement to amend the IEP without a meeting, the IEP included as district exhibit 29 includes 1:1 nursing services during transportation; however, the document is dated March 13, 2024, and bears no indication of the date of the amendment (Dist. Exs. 28 at p. 1; 29 at pp. 51-52).

[6] 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).

[7] Review of the iBrain education plan confirmed that music was something the student enjoyed and was motivated by and that music therapy focused on maintaining and achieving skills within the cognitive, communication, and sensorimotor domains, as well as maintaining skills gained in other therapies (Dist. Ex. 17 at pp. 19, 27-28, 31, 33, 38-39, 51-52).  Additionally, the iBrain education plan indicated that music therapy helped the student regulate, share attention, comprehend, and vocalize and encouraged the development of motor skills (id. at p. 52).  The April 2024 CSE recommended that the student receive speech-language therapy, OT, PT, and vision education services (Dist. Ex. 20 at p. 47).  Additionally, the annual goals developed by the April 2024 CSE targeted the student's skills in receptive language, expressive language, academics, communication, fine and gross motor development, pragmatic language, self-regulation, and social/emotional skills, similar to the goals outlined in the iBrain education plan (compare Dist. Ex. 20 at pp. 30-46, with Dist. Ex. 17 at pp. 75-76).

[8] While iBrain recommended hearing education services, the iBrain education plan indicated that there was no formal hearing evaluation completed (Dist. Ex. 17 at p. 17).  Instead, the education plan indicated that the student's team determined he struggled with expressive communication, processing auditory information, following simple directions, and completing tasks and would benefit from hearing services because they provide multi-modal communication input (id.).  Furthermore, the iBrain education plan indicated that a 2024-25 annual goal was to increase the student's auditory comprehension skills as demonstrated by his ability to make choices independently using his AAC device or sign approximations or gestures (id. at p. 43).  The education plan indicated that hearing services would allow for the repetition and practice that the student needed to improve his communication skills (id. at p. 44).  The April 2024 CSE developed several annual goals designed to improve the student's skills using his high-tech AAC device across different environments with increased independence; to improve his expressive language by using various modes of communication to request or reject, comment, and ask or answer questions; to participate in all academic therapeutic and social activities given support of processing time, aided language stimulation, and minimal to moderate cues; to improve his pragmatic language using various modes of communication to improve social interaction skills by greeting/closing conversations, asking questions and advocating for himself with peers and adults across all contexts with the support of repetition and multimodal cues and prompts, and to independently use his communication device to request breaks when dysregulated (Dist. Ex. 20 at pp. 35, 37-38, 44).

[9] "School health services means health services provided by either a qualified school nurse or other qualified person that are designed to enable a student with a disability to receive a [FAPE] as described in the [IEP] of the student" (8 NYCRR 200.1[ss][1]).

[10] "School nurse services means services provided by a qualified school nurse pursuant to section 902(2)(b) of the Education Law that are designed to enable a student with a disability to receive a [FAPE] as described in the [IEP] of the student" (8 NYCRR 200.1[ss][2]).

[11] This does not mean that medical assessments must always be conducted by a district under all circumstances to provide the parent with free medical diagnoses whenever they seek it.  The thrust of the requirement is to ensure compliance with the educational objectives of the IDEA and "[i]f alternative assessment methods meet the evaluation criteria [required under Part B], then these methods may be used in lieu of a medical assessment" (Letter to Williams, 21 IDELR 73 [OSEP 1994]).

[12] Given this determination, I do not find it necessary to address the procedural grounds alleged by the parent to have additionally resulted in a denial of a FAPE to the student.

[13] Notably, the July 19, 2024 10-day notice letter prepared by a different law firm postdated the 10-day notice letter offered into evidence by the parents, which was dated June 14, 2024 (Parent Ex. A-A at p. 1).