STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-236
Application of a STUDENT WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Liberty & Freedom Law Group, Ltd., attorneys for petitioners, by Erin G. McGuinness, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Sarah M. Pourhosseini, Esq.
I. Introduction
This State-level administrative review is being conducted pursuant to an order of remand issued by the United States District Court for the Southern District of New York for the limited purpose of determining whether petitioners (the parents) were entitled to funding for the costs of the student's assistive technology devices while she attended a unilateral placement at the International Institute for the Brain (iBrain) during the 2021-22 school year (see J.J. v. Samuels, 2026 WL 440647 [S.D.N.Y. Feb. 17, 2026]). Having provided the parties with an opportunity to be heard and upon reexamination of the hearing record of the impartial hearing proceedings, the prior State-level submissions and administrative decisions, as well as the District Court's order of remand, the parents' appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
In a due process proceeding conducted pursuant to the IDEA, the decision of an 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[a]). 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]).
III. Facts and Procedural History
The student in this case has been the subject of a prior State-level administrative appeal (see Application of a Student with a Disability, Appeal No. 21-156 [concerning the 2020-21 school year]). In addition, the facts relevant to the student's educational history and the procedural history of the present matter at the school district and administrative hearing levels were set forth in the undersigned's decision before remand, Application of a Student with a Disability, Appeal No. 22-062. As such, the parties' familiarity with this matter is presumed. Moreover, the remand from the District Court is limited to the parent's request for relief in the form of district funding for the costs of the student's assistive technology devices for the 2021-22 school year. Nevertheless, for purposes of context, some facts and procedural history with emphasis regarding the 2021-22 school year and the District Court action are set forth below.
The student in this matter has continuously attended a 12-month program at iBrain from July 2018 through the 2021-22 school year at issue (see Tr. p. 137; Parent Exs. P ¶ 5; R ¶ 11).[1] A CSE convened on February 10, 2021 to conduct the student's annual review and developed an IEP with a projected implementation date of April 12, 2021 (see Parent Ex. F at pp. 1, 34). Finding the student eligible for special education as a student with a traumatic brain injury, the February 2021 CSE recommended a 12-month school year program, which, as relevant to this appeal, included a recommendation for assistive technology consisting of the following: "[two] flexible mounts; large and small switches; proximity sensor; latitude mounting arm; universal mounting plates; Medium Hi/Lo Base; [and] Switch Interface Pro"; as well as one 60-minute session per week of individual assistive technology services (id. at p. 30).[2]
In a letter dated June 23, 2021, the parents notified the district of their intentions to unilaterally place the student at iBrain for the 2021-22 school year (12-month program) and to seek public funding for the costs of this placement (see Parent Ex. H at p. 1). In the letter, the parents indicated that they were "rejecting the [district's] proposed program and placement" for the student for the 2021-22 school year (id.). Additionally, the parents noted that the district's "recommended program and placement w[ould] not appropriately address her educational needs," and moreover, that "the proposed [IEP] to be implemented during the 2021-2022 extended school year [was not] designed to enable the [s]tudent to receive educational benefit or receive appropriate related services" (id. at p. 2).
By due process complaint notice dated July 6, 2021, the parents alleged that the district failed to offer the student a FAPE for the 2021-22 school year based on various procedural and substantive violations (see Parent Ex. A at pp. 1, 3-5). As related to this appeal, the parents specifically alleged that the district failed to recommend "adequate and appropriate" assistive technology devices, such as a "jellybean and BigMack switches, "a computer with a switch interface, software like HelpKidzLearn and Tarheel Reader, and adaptive seating, to name a few" (id. at p. 3). As relief concerning this allegation, the parents sought an order directing the district to "provide Assistive Technology Service and Devices and AAC to assist [the s]tudent] with communications" and an order directing the district to "reimburse [the p]arents for all costs associated with the [s]tudent's assistive technology devices, including all required service hours and accessories such as mounts" (id. at p. 6).
On July 8, 2021, the parents executed an "Enrollment Contract" with iBrain for the student's attendance in a 12-month school year program for the 2021-22 school year (Parent Ex. I at pp. 1, 9; see generally Parent Ex. J). According to the terms of the contract, iBrain's base tuition fees in the amount of $163,000.00 did not include the costs of assistive technology services or devices (see Parent Ex. J at pp. 1-2). However, iBrain's supplemental tuition fees covered the cost of the student's assistive technology services—i.e., one 60-minute session per week, individually—at the rate of $104.00 per session (id. at p. 2). The supplemental tuition fees did not include the costs of assistive technology devices (id.). The contract indicated that the full cost of the student's supplemental tuition fees for the 2021-22 school year (for all related services, including the cost of assistive technology services) totaled $91,936.00 (id.).
On August 19, 2021, the parties proceeded to an impartial hearing, which concluded on February 16, 2022, after six total days of proceedings (see Tr. pp. 1-169).[3] In a decision dated April 4, 2022 (April 2022 IHO decision), the IHO found that the district failed to offer the student a FAPE for the 2021-22 school year, that iBrain was an appropriate unilateral placement for the student, and that equitable considerations weighed in favor of the parents' requested relief of direct funding for the costs of the unilateral placement (see IHO Decision at pp. 6-15). Prior to reaching these determinations, however, the IHO indicated in a footnote that, because the parents had failed to include their claims for assistive technology devices and services in their "final request for relief," the IHO had deemed this requested relief as "withdrawn" (id. at p. 4, n.1).[4] Therefore, as relief, the IHO ordered the district to directly fund the costs of the student's base tuition at iBrain in the amount of $163,000.00, as well as to directly fund the costs of the student's supplemental tuition at iBrain in the amount of $91,936.00, but denied all other relief, including the parents' request to be reimbursed for, or to directly fund, the costs of the student's 1:1 nursing services (id. at pp. 14-15).
The parents narrowly appealed the April 2022 IHO decision with respect to the 1:1 nursing services and the IHO's finding that they had "withdr[awn] their requests for assistive technology devices" (Req. for Rev. at pp. 1-2; see Application of a Student with a Disability, Appeal No. 22-062). More specifically, the parents argued that the IHO erred by finding that the claim for assistive technology devices had been withdrawn because it had not been included as a request for relief in their closing brief (see Req. for Rev. ¶¶ 26-27).[5] As relief on appeal, the parents sought an order directing the district to "fund [the student's] IEP-mandated assistive technology device" (id. ¶ 35[2]).
In its answer, the district argued to uphold the IHO's decision denying the parents' request for the district to provide the student with the assistive technology device recommended in the student's February 2021 IEP. The district asserted that, once the parents "rejected the recommended public school placement, they rejected the entire February 2021 IEP"; as a result, the district was not required to provide the student with the assistive technology device recommended therein (Answer ¶ 11).
In a decision dated June 23, 2022 (June 2022 SRO decision), the undersigned issued a decision that ultimately upheld the April 2022 IHO decision denying the parents' requested relief (see Application of a Student with a Disability, Appeal No. 22-062).
A. District Court
Thereafter, the parents appealed the June 2022 SRO decision to the United States District Court of the Southern District (see J.J. v. Samuels., 2026 WL 440647 [S.D.N.Y. Feb. 17, 2026]). The parents argued that the SRO (and the IHO) erred by denying their request for public funding of the student's 1:1 nursing services and assistive technology devices for the 2021-22 school year (J.J., 2026 WL 440647, at *1).[6] With respect to the assistive technology devices, the court found that the "IHO and SRO erred in holding that the [parents] failed to preserve the argument that they were entitled to reimbursement for [assistive technology] devices" (id. at *4). The court remanded the matter to the Office of State review for disposition consistent with the court's decision (id. at *5).
B. Parties' Positions on Remand to SRO
Prior to addressing the issue remanded by the district court, the SRO provided the parties with an opportunity to submit written statements in support of their respective positions. The parents contend that, because the February 2021 CSE recommended assistive technology devices for the student in her February 2021 IEP, and because federal regulation requires that the "'[o]n a case-by-case basis, use of school-purchased assistive technology devices in a child's home or other setting is required if the child's IEP Team determines that the child needs access to those devices in order to receive a FAPE,'" the district was required to reimburse the parents for these devices (Parent Position Statement ¶¶ 2-3, 6, 7-8, 10 [emphasis in original], citing 34 CFR 300.105[b]).
In its position paper, the district initially points out that, to the extent the parents continue to seek an order directing the district to provide the student with the assistive technology device, the court "denied this claim as moot." The district also contends that the parents are not entitled to reimbursement for an assistive technology device because the hearing record is devoid of evidence that the parents incurred any costs for assistive technology devices during the 2021-22 school year. In addition, the district asserts that the hearing record is devoid of evidence that the parents independently purchased assistive technology devices for the student and whether any costs were incurred for assistive technology devices during the 2021-22 school year.
IV. 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]).[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).
V. Discussion
Based on the evidence in the hearing record, the student attended iBrain for the 2021-22 school year in a 6:1+1 special class placement and received the following as related services on a "weekly, push in/pull out basis:" four 60-minute sessions per week of OT, five 60-minute sessions per week of PT, five 60-minute sessions per week of speech-language therapy, three 60-minute sessions per week of vision education services, one 60-minute session per week of assistive technology services, and two 60-minute sessions of music therapy (Parent Ex. R ¶ 12). The evidence in the hearing record further reflects that the student had an assistive technology device and related supports "for use throughout the day across all school environments" (id.; see Parent Ex. P ¶ 10 [reflecting that the student received "assistive technology devices and services" at iBrain during the 2021-22 school year]).
As has been noted previously, there is no dispute that the student required the use of assistive technology devices, and based on the evidence in the hearing record, it appears that the student used assistive technology devices at iBrain (i.e., she "uses a small, single button speech output device, such as a LITTLEmack, and a Jellybean switch to communicate, activate cause-and-effect toys, and play computer games") during the 2021-22 school year (see Parent Exs. E at pp. 1-6, 11-12, 18, 20-21, 25-26, 28, 31, 37-38; F at pp. 24-27, 30; P ¶ 10; R ¶¶ 5, 12; see, e.g., Tr. pp. 9-10, 126-29, 143 [reflecting that the student currently had an assistive technology device, as well as the student's use of a "switch" for communication during therapy sessions, "morning meeting," greeting others more independently, and expanding her ability to use her "switch" for a wider range of things]; see also IHO Decision at pp. 10-11).[8] It also appears that iBrain provided the student with such assistive technology devices regardless of the fact that the devices' costs were not covered under iBrain's base tuition or supplemental fees.[9] That is, the hearing record is devoid of evidence that either iBrain or the parents contracted with a third party to provide the student with an assistive technology device, or that iBrain or a third party invoiced the parents for additional costs to provide the student with assistive technology devices during the 2021-22 school year (see generally Tr. pp. 1-169; Parent Exs. A-S; Dist. Exs. 1-9).
To be clear, in order to receive reimbursement or funding for assistive technology devices as a portion of the unilateral placement, the parents must undergo the financial risk associated with unilateral placements (see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] ["Parents who are dissatisfied with their child's education can unilaterally change their child's placement during the pendency of review proceedings and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test"] [first emphasis added] [internal quotations marks and footnotes omitted]; see also Carter, 510 U.S. at 14).
In Burlington, the Court stated that "[p]arents who unilaterally withdraw their child from the public school and thereafter seek tuition reimbursement for the[ir] child's private placement do so at their own peril," because they bear the financial risk, both as to tuition and legal expense, and the burden of demonstrating the appropriateness of their relief (471 U.S. at 373-74). Congress thereafter took action to emphasize the need for parents to be invested in the process of developing a public school placement for eligible students with disabilities by placing limitations on private school reimbursements under the IDEA (20 U.S.C. § 1412[a][10][iii]). The statute "textually presupposes that the parents had incurred those costs" (Moonsammy v. Banks, 2024 WL 4277521, at *7 [S.D.N.Y. Sept. 23, 2024] ["Moonsammy I"]; see Moonsammy v. Banks, 2025 WL 733254, at *7 [S.D.N.Y. Mar. 7, 2025] ["Moonsammy II"]). This statutory construct is a significant deterrent to false or speculative claims (see Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 543 [2007] [Scalia, J., dissenting] [noting that "actions seeking reimbursement are less likely to be frivolous, since not many parents will be willing to lay out the money for private education without some solid reason to believe the FAPE was inadequate"]).
Regarding proof of financial risk, parents must come forward with evidence of their financial obligation and may not seeking funding based on "nothing more than their say-so" (Moonsammy II, 2025 WL 733254, at *8).
Here, the hearing record is devoid of any evidence to suggest that the parents paid for assistive technology devices for the student, or contracted with any other entity to provide assistive technology devices to the student such that they have assumed any financial risk or financial obligation that would entitle them to reimbursement or funding for the costs of assistive technology devices provided to the student during the 2021-22 school year (see generally Tr. pp. 1-169; Parent Exs. A-S; Dist. Exs. 1-9). Significantly, the parents have never asserted throughout these administrative proceedings that they expended or incurred any obligation to expend any money for assistive technology devices for the student. Rather, the parents continue to present inapposite legal authority and misinterpretations of caselaw and regulations as a basis upon which to seek reimbursement or direct funding for the costs of assistive technology devices, without addressing the fact that they were never financially obligated for such devices for the 2021-22 school year.[10] Absent such proof, the parents' arguments must be dismissed.
VI. Conclusion
Having found that the hearing record does not warrant an award of district funding for assistive technology devices provided to the student during the 2021-22 school year, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] 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).
[2] 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]).
[3] In an interim decision dated August 20, 2021, the IHO ordered the district to provide the following as the student's pendency services: "funding for the cost of the [s]tudent's attendance at iBrain for the 12-month 2021-2022 school year, including nursing costs and related services, and including the costs of specialized transportation to and from iBrain" (Parent Ex. C at p. 5). The IHO found that the student's pendency services arose from an unappealed IHO decision, dated December 30, 2020 (id. at pp. 2-4; see generally Parent Ex. B).
[4] Although the parents had initially requested two forms of relief with respect to the assistive technology devices in the due process complaint notice—i.e., for the district to provide the student with the assistive technology device and/or for the district to "reimburse" the parents for the costs of the assistive technology device—the IHO did not specify whether he had deemed any and all assistive technology relief abandoned (compare Parent Ex. A at p. 6, with IHO Decision at p. 4, n.1). However, the IHO's ordering clause included a catch-all indicating that the IHO had denied "any other relief requested" (IHO Decision at p. 15). Therefore, regardless of whether the IHO had deemed both of the parents' forms of relief for assistive technology devices as abandoned, the IHO clearly denied both of the parents' requests for relief in the form of reimbursement for the assistive technology device and in the form of ordering the district to provide the student with the assistive technology device recommended in the February 2021 IEP.
[5] It must be noted that the heading for the parents' arguments read, in part, as follows: "[The district] should be ordered to provide [the student] with its IEP-mandated assistive technology device" (Req. for Rev. at p. 5).
[6] The court held that the parents' request to be reimbursed for the costs of the student's 1:1 nursing services was moot because the parents had "already received funding pursuant to the terms of the IHO's Pendency Order" (J.J., 2026 WL 440647, at *2-*4).
[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] At the impartial hearing, the director testified that, throughout the student's placement at iBrain since 2018, the district has not provided the student with an assistive technology device, such as a switch (see Tr. p. 143).
[9] A review of the parents' enrollment contract with iBrain reveals that the contract terms do not address who bore the responsibility for obtaining or providing the student with assistive technology devices (see generally Parent Ex. J).
[10] In addition to relying on 34 CFR 300.105(b), the parents also cite to two district court cases in further support of its position: J.C. v. New Fairfield Board of Education, 2011 WL 1322563 (D.Conn. Mar. 31, 2011) and E.F. v. New York City Department of Education, 2013 WL 4495676 (E.D.N.Y. Aug. 19, 2013). In both cases, the parents respectively challenged the appropriateness of their children's IEPs based, in part, on the districts' failures to recommend assistive technology devices and services in the IEPs (see E.F., 2013 WL 4495676, at * 9; J.C., 2011 WL 1322563, at * 10 [considering question of whether a student's prosthetic arm constituted assistive technology, and if so, whether the student's IEP was inappropriate because it did not provide for assistive technology to meet the student's needs; if the student's IEP was inappropriate because it did not include a recommendation for assistive technology, the court also considered whether the parents were entitled to reimbursement for the prosthetic device]). While both cases cite to the federal regulation argued by the parents in the present matter, the cases are inapposite because the issue of assistive technology arose in the context of a FAPE dispute because the respective IEPs did not include recommendations for assistive technology, and did not consider whether the districts were required to provide the students with assistive technology for use in their unilateral placements after the parents rejected their children's IEPs, as in the present matter. Notably, as discussed above, federal regulation directly addresses students with disabilities who were enrolled by their parents in private schools when FAPE is at issue: 34 CFR 300.148.