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 the decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) reimburse her for the costs of her son's tuition at the Foundry Learning Center (Foundry), home-based applied behavior analysis (ABA) services, and transportation services for the 2024-25 school year.  The appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4[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]).  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

In this case, the evidence in the hearing record reflects that, over the course of three dates in July and August 2021, the parent privately obtained a neuropsychological and educational evaluation (August 2021 neuropsychological evaluation) of the student "due to concerns regarding his global development and to assist with educational planning" (Parent Ex. C at p. 1).[1]  As reflected in the evaluation report, the student had received services through the Early Intervention Program (EIP), including occupational therapy (OT), physical therapy (PT), speech-language therapy, and ABA services, which had terminated when the student "graduated" from receiving EIP services (id. at p. 2).  The evaluation report indicated that the student had a "trach[eostomy] tube for two years and still ha[d] the g[astrostomy]-tube [g-tube] (he refuse[d] to eat or drink)" and was "also supposed to receive feeding therapy" (id.).  Additionally, the psychologist noted that the COVID-19 pandemic had interrupted services or limited services delivered to the student (id.).  The evaluation report further indicated that, for "10 hours per day" and on a daily basis, "[n]urses c[a]me to visit to feed [the student] and to take care of changing his diapers and to make sure his g-button stay[ed] in place" (id.).

According to the August 2021 neuropsychological evaluation report, the student had been previously diagnosed as having autism, he was nonverbal, and he had "physical speech complications due to a medication condition . . . affecting his tongue" (Parent Ex. C at p. 1).  At that time, it was noted that the student engaged in "repetitive behaviors"; held onto objects for extended periods of time "waving it and looking at it"; and adapted "adequately to new people," while remaining "hesitant to interact with others, including peers," at the park (id.).  It was also noted that, recently, the student had "some behavioral changes," which included "hitting, scratching, and at times biting others" (id.).  In addition, the parent reported that the student might "bang his head or engage in these behaviors when he [wa]s frustrated about not being able to express himself" (id.).  It was further noted in the evaluation report that the student's "special education teacher assigned to him [] could not continue to work with him," and it was "generally very difficult to get [the student's] attention" (id.).  According to the evaluation report, the student's "most recent IEP" included recommendations for an 8:1+2 special class placement, speech-language therapy, OT, PT, individual paraprofessional services, and special transportation (with, among other things, an individual paraprofessional) (id. at pp. 1-2).

Given the student's testing results, the psychologist found that the student exhibited a "global developmental delay that span[ned] all areas of measured functioning" (Parent Ex. C at p. 6).  Overall, the evaluation revealed a "mild-to-moderate delay in cognitive development," with a relative strength in "visual-spatial skills," which were "still very low" (id.).  In the areas of "problem solving (e.g., pattern recognition), acquired knowledge, and verbal concept formation," the student demonstrated skills that "were all extremely limited, though in most areas there was at least some basic capacity" (id.).  In the area of language, the psychologist described the student as "nonverbal" and with a "vocabulary knowledge" similar to that of a two and one-half year old student and with "very limited comprehension of sentences and linguistic concepts" (id.).  Based on observations of the student, the psychologist indicated that the student required a "lot of redirection to settle his body and to focus on tasks," but was generally able to transition well and was "sufficiently flexible" (id.).  As reflected in the evaluation report, the student exhibited "[m]oderate-to-severe challenges" with "attention, working memory, and his ability to plan and organize tasks for himself at an age-appropriate level" (id.).  Testing results also demonstrated that the student had limitations in the areas of fine motor control, visual perception, and visual-motor integration skills (id.).  Academically, the student displayed "some relative strengths," as evidenced by his acquisition of "some early math and letter concepts albeit below average for his age" (id.).  However, his overall adaptive functioning skills in the areas of "communication, daily living skills, socialization, and motor skills [we]re consistent with his overall cognitive functioning" and fell within the "low range" (id.).

In light of the student's testing results, the psychologist recommended, in part, that the student attend a "full-time, one-on-one, [ABA] educational environment, as part of a specialized, ABA school with related services, family training and education, and a 12-month program" (Parent Ex. C at p. 6).  Additionally, the psychologist recommended that the student receive 10 hours per week of "ABA support outside of school, over the weekend," so the student could "generalize gains made at school into the home and community settings, as well as to maintain the intensity of intervention he require[d] as a [student] with substantial developmental disabilities" (id. at p. 7).

Evidence in the hearing record reflects that the student began attending Foundry in January 2022 (see Parent Ex. V ¶ 19; IHO Ex. III at p. 1).  Evidence in the hearing record also reflects that the student began receiving unilaterally-obtained, home-based ABA services in or around March 2022 (see Parent Ex. W ¶ 12).

On March 29, 2023, a CSE convened and developed an IEP for the student for the 2023-24 school year (see IHO Ex. III at pp. 1, 32).[2]  Finding that the student remained eligible to receive special education as a student with autism, the March 2023 CSE recommended 12-month programming consisting of the following: a 6:1+1 special class placement in a specialized school together with three 30-minute sessions per week of individual OT, two 30-minute sessions per week of individual PT, and three 30-minute sessions per week of individual speech-language therapy (id. at pp. 26-28).[3]  The IEP also included recommendations for the student to participate in adapted physical education and to use a dynamic display speech generating device (id. at pp. 26-27).[4]  The CSE further recommended that the parent receive one 60-minute session per month of parent counseling and training services (id. at p. 27).  As noted in the IEP, an ABA provider delivered services to the student in his home three times per week (id. at p. 3).

Evidence in the hearing record reflects that the student continued to attend Foundry during the 2023-24 school year (see generally Parent Exs. L-N).  In November 2023, Foundry developed a behavioral intervention plan (BIP) (November 2023 BIP) for the student (see Parent Ex. X at p. 1).  The November 2023 BIP targeted three behaviors: aggression, flopping, and self-injurious behaviors (id.).  The BIP defined the behaviors, and included information regarding the suspected functions of the behaviors, current antecedent strategies, consequence strategies, and crisis prevention (id. at pp. 1-2).[5]

On January 11, 2024, one of the student's home-based ABA providers developed a BIP (January 2024 BIP) for the student (see Parent Exs. P at p. 1; Q at p. 1).  The January 2024 BIP identified and defined the targeted behaviors as follows: "dropping to the floor, non-compliance in the form of continued to engage in preferred choice while disregarding instruction, head banging, pushing [or] hitting [or] scratching instructor, [and] removal of pants and pull-up" (id.).  The BIP included information about the student's behaviors, such as the baseline measure of targeted problem behaviors, the functional hypothesis of the behaviors (i.e., setting events, antecedent, target problem behavior, and maintaining consequence or function), a statement of the functional hypothesis, global and broad influences related to the targeted behaviors, intervention strategies, and progress monitoring (id. at pp. 1-4).

Over two days in May 2024, the parent privately obtained a neuropsychological and educational evaluation (May 2024 neuropsychological evaluation) of the student from the same psychologist who conducted the student's August 2021 neuropsychological evaluation (compare Parent Ex. D at p. 1, with Parent Ex. C at p. 1).  According to the evaluation report, the psychologist based the "information obtained from interviews with the [parents], parent questionnaires, a review of educational records, and neuropsychological and educational testing" (Parent Ex. D at p. 1).  Initially, the May 2024 neuropsychological evaluation report included the summary from the student's November 2021 neuropsychological evaluation report, as well as the recommendations made therein (id. at pp. 1-2).  With respect to the updated testing from 2024, the psychologist indicated that the student had been attending Foundry, where he received "one-on-one intensive therapy" and home-based ABA services that had increased from the student receiving 10 hours per week to now receiving 20 hours per week (id. at p. 2).  According to the psychologist, the student's "academic progress include[d] using an iPad app[lication] to spell words, writing some words, recognizing and doing well with sight words, and starting to solve simple addition problems" (id.).  At school, the student reportedly used the iPad to spell but not to request items, and while the student would often "grab someone's hand to communicate nonverbally," he was "beginning to say words like 'mama,' 'open,' 'apple,' 'banana,' and 'bye' with adult prompts" (id.).[6]  The psychologist also indicated that the student could understand simple instructions, "such as laying down when told he need[ed] a diaper change" (id.).  The psychologist further noted that the student's home-based ABA focused on "writing, reading skills, and adaptive skills like potty training" (id.).  The psychologist indicated that the student's scratching behavior had decreased, and he had improved his ability to clean up and put his things away (id.). 

The May 2024 neuropsychological evaluation report reflected that the parent described the home-based ABA services as "beneficial, reinforcing school learning" (Parent Ex. D at p. 3).  The parent reported that the student's home-based ABA activities included going to the park and brushing his teeth (id.).  In addition, it was noted that the student had, within the past month, "exhibited increased self-injurious behaviors, hitting himself to the point of bruising," and had been hitting his parent "more often" (id.).  According to the psychologist, the student "appear[ed] more frustrated and angrier" (id.).

In the May 2024 neuropsychological evaluation report, the psychologist noted that, per the parent, the student was "quick to learn and [was] making progress in spelling words" (Parent Ex. D at p. 3).  According to the parent, the student could "say simple one-syllable words," and he had improved his ability to communicate his bathroom needs (id.).  In addition, the parent reported that the student's home-based ABA services addressed his "aggressive tantrums" but he continued to "exhibit rigid behaviors," and received related services at "school" (id.).

Based on the updated testing results, the psychologist found that the student's "overall developmental level [wa]s significantly below average for his age," with an "extremely low range of intellectual functioning" (Parent Ex. D at p. 8).  The student also demonstrated adaptive behaviors in the "low range," and the psychologist opined that the student's scores "reflect[ed] moderately to severely impaired intellectual functioning and adaptive behavior skills" (id.).  With regard to academic strengths, the psychologist noted that the student showed a "good understanding of concepts such as 'more,'" he "demonstrated an ability to identify upper- and lowercase letters and letter sounds through pointing," and he could "spell some three-letter words" (id.).  According to the psychologist, the student's reading comprehension skills were "relatively stronger" and comparable to those of a student approximately two years younger (id.).  In addition, the student exhibited "difficulties with tasks requiring working memory, attention, and executive functioning"; he struggled with expressive and receptive language skills; and he had difficulty "following multi-step instructions, regulating his behavior and emotions, and managing tasks independently" (id. at p. 9).  The student also displayed weaknesses in visual-motor skills, and he struggled with "basic addition and identifying shapes" (id.).  With regard to social/emotional functioning, the student had "significant challenges," and often appeared "stressed, irritable, and tense, with elevated concerns around hyperactivity and behavior" (id.).  The psychologist noted that the student could be "aggressive, both at home and in school, including self-injurious behavior and aggression towards others" (id.).

The psychologist indicated that the student met the criteria for "Autism Spectrum Disorder with accompanying intellectual (moderate) and language impairment (severe)," "reciprocal social behavior (requiring very substantial support)," and "restricted and repetitive behaviors (requiring substantial support)" (Parent Ex. D at p. 9).  In addition, the psychologist indicated that the student's "cognitive status and adaptive functioning contribute[d] to a diagnosis of Moderate Intellectual Disability," and his challenges in both fine-motor and gross-motor skills warranted a "diagnosis of Developmental Coordination Disorder" (id.).

As recommendations, the psychologist noted, in part, that the student required a "highly supportive and specialized setting for students with autism" (Parent Ex. D at p. 9).  More specifically, according to the psychologist, the student required a "very small classroom setting and predominantly one-on-one work with professional staff that [wa]s largely ABA-based, with some opportunities for dyadic work as he [wa]s able to do so" (id.).  The psychologist also recommended related services, such as OT, PT, and speech-language therapy for the student, to "target his areas of difficulty" and that the "inclusion of DIR/Floortime and dance/movement therapy c[ould] also support his social and emotional growth, offering an additional layer of intervention beyond the ABA methodology, which [wa]s important for developing his ability to engage socially" (id. at p. 10).  The psychologist also noted that the student continued to require "ABA therapy outside of the school setting to help support the generalization of skills he [wa]s acquiring at school, as well as to address essential life skills" (id.).  The psychologist suggested a medication consultation given the student's "significant challenges with hyperactivity, aggression, and self-injurious behaviors" (id.).[7]

On May 23, 2024, the parent executed an "Enrollment Agreement" with Foundry for the student's attendance during the 2024-25 school year from July 8, 2024 through June 26, 2025 (Parent Ex. E at pp. 1, 5, 7).[8]  According to the agreement, the program consisted of "1:1 instruction, 30 hours per week, which [wa]s inclusive of special education and behavioral instruction, parent training and related services at an appropriate frequency" to meet the student's needs (id. at p. 1).  The agreement indicated that related services included OT, PT, speech-language therapy, and counseling (id.).  In addition, the agreement specifically noted that the tuition fee did not include the costs of an individual health or crisis management paraprofessional, or a "dedicated nurse" (id. at p. 2).

In a letter, dated June 17, 2024, the parent notified the district of her intentions to unilaterally place the student at Foundry for the 2024-25 school year (12-month program) and to seek public funding for the following: the costs of the student's tuition at Foundry; 20 hours per week of individual, home-based ABA services; and the costs of transportation to and from Foundry if the district did not provide transportation with an individual nurse (see Parent Ex. B at pp. 1-3).

On July 1, 2024, the parent executed an agreement for the provision of special education teacher support services (SETSS) with "H&Y ABA services" (H&Y) for the 2024-25 school year (Parent Ex. O at p. 1).[9]  The parent agreed to pay the "'SETSS/ABA" provider (ABA provider) $175.00 per hour for the 2024-25 school year because the provider did not "accept the standard hourly rate paid" by the district (id.).[10]  On the same date, July 1, 2024, the parent executed another agreement for the delivery of SETSS, this one with "NYC Behavioral Specialists" (NYC) for the 2024-25 school year (id. at p. 2).[11]  In the agreement with NYC Behavioral, the parent agreed to pay an unidentified "'SETSS/ABA" provider (ABA provider) $175.00 per hour for the 2024-25 school year because the provider did not "accept the standard hourly rate paid" by the district (id.).[12]

A. Due Process Complaint Notice

By due process complaint notice dated July 1, 2024, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2024-25 school year primarily based on the assertion that the district failed to develop an IEP for the student for that school year (see Parent Ex. A at pp. 1, 6-7).  As relief, the parent sought an order directing the district to reimburse or fund the costs of the student's tuition at Foundry; fund the costs of 20 hours per week of afterschool or home-based ABA services at an enhanced rate; ensure that services were delivered to the student at the parent's sole discretion, on a full-day basis and for seven days per week, including over school holidays, vacations, and summer months to prevent substantial regression; and provide round-trip transportation services or reimbursement for transportation costs incurred (id. at pp. 9-10).

B. Events Post-Dating the Due Process Complaint Notice

On July 5, 2024, the parent executed an addendum to the enrollment agreement, identified as "Addendum B—Alternative Transportation," which was written on Foundry letterhead (Parent Ex. F at pp. 1-2).  According to the document, although the student was eligible for transportation services (i.e., "door-to-door busing) through the district's "Office of Pupil Transportation," the office had "not agreed to provide this service or [wa]s otherwise failing to provide this service or appropriate medical accommodations" (id. at p. 1).  As a result, the agreement indicated that the "Foundry Center w[ould] provide transportation services" for the student to Foundry "when school [wa]s in session" and "only when [the district] fail[ed] to provide the appropriate transportation services" (id.).  In addition, the agreement identified the use of "For-Hire Vehicles" or "New York City taxis" as potential deliverers of the student's transportation services (id.).  The agreement indicated that the fee for transportation was a "flat rate" of $135.00 for "each direction for travel to or from" the student's home to Foundry (id.).  The agreement term was noted as July 8, 2024 through June 25, 2025 (id.).

Evidence in the hearing record reflects that the student began attending Foundry on July 8, 2024 for the 2024-25 school year (see Parent Ex. K).

C. Impartial Hearing Officer Decision

On August 2, 2024, the parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH), which concluded on October 7, 2024, after four days of proceedings (see Tr. pp. 1-274).[13]  At the August 2, 2024 impartial hearing, the IHO held a prehearing conference, resulting in a written prehearing conference summary and order (prehearing order) (see Tr. pp. 1, 3; IHO Ex. I at p. 1).[14]  At the prehearing conference, the parties framed the issues for the impartial hearing, discussed potential witnesses, and scheduled impartial hearing dates to address pendency (August 12, 2024) and the presentation of the merits (September 10, 2024) (see Tr. pp. 3-17).[15]  The IHO's prehearing order addressed, among other things, the timing for both parties to disclose evidence and witness lists, to wit, five days "before the scheduled hearing date" (IHO Ex. I ¶ 17).  The impartial hearing resumed on August 12, 2024 to address pendency, continued on September 10, 2024,[16] and concluded on October 7, 2024, with the parties providing written closing statements to the IHO (see Tr. pp. 19, 25, 152; IHO Exs. IV-V).[17]

In a decision dated January 17, 2025, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year, neither Foundry nor the home-based ABA services were appropriate to meet the student's needs, and the parent was not entitled to reimbursement or funding of the costs of the student's transportation services (see IHO Decision at pp. 21-36).  Although the IHO did not address equitable considerations, she noted that she had "concerns on this prong as well" (id. at pp. 37-38). For these reasons, the IHO denied all of the parent's requested relief (id.).

In reaching the determination that the parent failed to sustain her burden to establish the appropriateness of Foundry and the home-based ABA services, the IHO heavily relied on the absence of the following evidence in the hearing record: "data, program books or session notes"; data on the student's observable behaviors at Foundry; formal assessments of the student at Foundry; documentation of the student's educational plan or goals at Foundry; assessments of the student in the areas of OT, PT, or speech-language therapy; progress reports for the 2024-25 school year; the July 2024 VB-MAPP; an updated BIP for the student; and further noted the failure to implement all of the recommendations in the May 2024 neuropsychological evaluation (i.e., dyadic work, additional methodologies, medication consultation) (IHO Decision at pp. 22-25).[18]  In addition, the IHO noted that testimony from the parent's witnesses was, at times, inconsistent, contradictory, and vague (id. at pp. 25-34).    

In addition, the IHO found that the Foundry director of operations' testimony was not credible, noting that, "as an owner" and director of operations, the witness did not know "what percentage" of the total tuition was "profit" (IHO Decision at p. 32).  Similarly, the IHO found that the Foundry director's testimony was not "wholly credible" because his testimony at the impartial hearing "differed" from his direct testimony, which had been submitted in an affidavit (id.).  Adding to this concern, the IHO noted that the director testified about "items which he did not know," which made the IHO "question the reliability of his testimony" (id.).  With regard to the psychologist's testimony, the IHO found that his "evaluation and opinion [we]re diminished by his not reviewing updated educational documents, not speaking with the [s]tudent's teachers and [home-based] ABA provider, utilizing the majority of the information reported by [the p]arent, without confirmation, and recommending [home-based] ABA because there [were] a lot of hours when the [s]tudent [wa]s not in school," which, according to the IHO, made "one wonder if the after-school services were to relieve the [p]arent, and more akin to childcare" (id.).

Turning to the ABA provider's testimony, the IHO noted that, although he had been working with the student since 2018, the student continued to manifest the "same behaviors throughout the years," and the ABA provider offered no testimony to explain why he had developed a BIP for the student just "months after" Foundry had developed a BIP for the student (IHO Decision at pp. 32-33).  Overall, the IHO did not find the ABA provider's testimony "fully probative" of the student's need for home-based ABA services because the ABA provider "testified in broad general terms," he did not "submit any data or documents," he had "disagreed" with the psychologist's opinion with regard to methodologies that may be effective with the student, and he was not "specific as [to] how he coordinated efforts" with Foundry and "used materials they were working on" with the student (id. at p. 33).  The IHO also noted that the two ABA providers spent a "great deal of hours" with the student "six days a week because of the [p]arent's challenges with overseeing" the student (id.).

Finally, the IHO examined the parent's testimony (see IHO Decision at p. 33).  Here, the IHO found that the parent "provided conflicting information as between her testimonial affidavit and direct testimony," which, according to the IHO, was "often non-responsive or confused" (id.).  As a result, the IHO found that the parent was not a "credible witness" (id.).

In light of the foregoing, the IHO concluded that, despite the evidence in the hearing record describing the student as having "significant delays in 'all areas, including his academic development, speech and language, attention, and social and emotional regulation,'" the absence of "any documentary evidence" for the 2024-25 school year—"although a significant amount of data and assessments existed"—together with the "conflicting testimony between witnesses and contradictory documents," could not be ignored (IHO Decision at p. 33).  For these reasons, the IHO determined that the parent failed to sustain her burden to demonstrate that Foundry was an appropriate unilateral placement (id.).  In addition, the IHO noted that Foundry did not provide the methodologies recommended by the psychologist; the student's behaviors, after years of attending Foundry and receiving home-based ABA services, continued to "remain severe and disruptive, and seem[ed] to have increased"; the student's class at Foundry included other students with behavioral issues, "which may not [have] be[en] of benefit" to the student; and each of the parent's witnesses "reported different academic levels" for the student (id. at pp. 33-34).  As a final point, the IHO indicated that the student's "progress" for the 2024-25 school year had been "reported to exist during" the previous, 2023-24 school year, "as per the documents, testimony, and [March 20]23 IEP" (id. at p. 34).  Additionally, the IHO noted that the "conflicting testimony raise[d] questions and d[id] not provide a concrete picture" of the student, his needs, and how the "educational program put in place by the [p]arent" met the student's needs (id.).  Therefore, the IHO determined the evidence in the hearing record did not support finding that Foundry was an appropriate unilateral placement because it did not provide the student with "specially designed instruction adapted" to the student's needs (id.).

Having found that Foundry was not an appropriate unilateral placement for the student, the IHO turned to examine whether the student's home-based ABA services were appropriate (see IHO Decision at p. 34).  Initially, the IHO noted that the district was not required to "design an educational program to address a student's difficulties in generalizing skills to other environments outside of the school environment, . . . , particularly where the student [wa]s making progress in the classroom" (id. at p. 35).  According to the IHO, in this matter, the student attended Foundry and received ABA instruction throughout the school day for 30 hours per week (id.).  The IHO indicated that the district was not responsible for providing home-based ABA services "unless the service was required" for the student to "maintain" or "retain skills" (id.).  In addition, the IHO noted that even if the student benefitted from the home-based services, that, "in and of itself wa[s] not enough to entitle [the parent to] reimbursement for services provided in excess of a FAPE" (id.).  Specifically, the IHO found that the parent's evidence did not substantiate the following: the extent to which Foundry "could not service the [s]tudent without the [home-based] ABA services," whether the student's home-based ABA services resulted in the student making progress at Foundry, whether the home-based ABA services were required for the student to maintain and retain skills, whether the student would not receive educational benefit from his program at Foundry without home-based ABA services, and whether the student would experience regression at Foundry without home-based ABA services (id.).

Next, the IHO indicated that the student's "hygiene related tasks" were assisted by nurses at home and he worked on "life skills" at Foundry (IHO Decision at p. 35).  Overall, the IHO found that while the home-based ABA services may have benefitted the student, "there was no proof it [wa]s for educational purposes" (id.).  Moreover, the IHO found that, while the student "may need constant supervision after-school and on weekends, ABA therapy [wa]s not to be used for childcare" and it was not "intended to relieve parents of their parental duties" (id.).  For these reasons, the IHO concluded that the parent failed to sustain her burden to establish the appropriateness of the student's home-based ABA services (id.).

Finally, the IHO examined the parent's request to be reimbursed for the costs of the student's transportation for the 2024-25 school year (see IHO Decision at p. 36).  Initially, the IHO pointed out that, although the parent requested reimbursement for transportation costs, she failed to provide any evidence on this issue (id.).  Based on the student's most recent IEP, dated March 2023, the IHO indicated that the student was entitled to special transportation with accommodations (id.).  However, the IHO noted that the parent testified that "she first communicated with the [d]istrict regarding transportation two or three weeks" before the impartial hearing and had made "no efforts to contact" the district before the beginning of the school year for transportation services (id.).  With respect to the transportation contract the parent entered with Foundry, the IHO noted that Foundry received a profit from the services notwithstanding that the services were provided by a third-party (id.).  The IHO found that, for the 2024-25 school year, the hearing record was devoid of evidence that "anybody" from Foundry had accompanied the student during transportation and the hearing record was similarly devoid of any explanation regarding "why an escort was required when the [s]tudent's private nurse, funded through Medicaid, accompanied the [s]tudent to and from" Foundry (id.).  Accordingly, the IHO directed the district to provide the student with transportation services consistent with those set forth in the March 2023 IEP, and to fund the student's transportation services at $70.00 "each way" until the district complied with the IHO's directive to provide transportation services and in the event that the parent continued to place the student at Foundry despite having found that it was not appropriate (id.).  The IHO further noted that if the district had issued an IEP post-dating the March 2023 IEP, then the district was to provide transportation services for the student consistent with the district's most recent transportation mandate in the newly created IEP (id.).

Having found that the parent failed to sustain her burden to establish the appropriateness of Foundry and the home-based ABA services, the IHO noted that equitable considerations need not be addressed (see IHO Decision at p. 37).  However, in a footnote, the IHO indicated that the district had raised "equitable issues" in its closing brief, and "this tribunal ha[d] concerns on this prong as well" (id., n. 21).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred by finding that she failed to sustain her burden to establish the appropriateness of the student's unilateral placement at Foundry and the appropriateness of the student's home-based ABA services.  The parent also alleges the IHO erred by failing to award funding for the costs of the student's transportation services and by failing to address equitable considerations.  In further support of her appeal, the parent attaches additional documentary evidence for consideration.

With regard to the parent's claims on appeal, the parent initially contends that the IHO erred by applying incorrect legal and evidentiary standards, requiring the parent to "establish actual and significant progress" to demonstrate the appropriateness of Foundry and the home-based ABA services.  According to the parent, the IHO improperly held her to a higher standard than required of a district when establishing a FAPE.  More specifically, the parent asserts that, by finding that she failed to meet her burden of proof because the hearing record lacked documents, such as "raw data, program books, [and] daily session notes," the IHO improperly held the parent to a standard beyond a preponderance of the evidence.

Next, the parent asserts that, although the IHO set forth the correct legal standard and the correct burden of proof in the decision, and correctly limited the scope of the impartial hearing to the four corners of the due process complaint notice and the defenses raised by the district, the IHO nevertheless held the parent to a higher legal standard and ruled against the parent based on undisputed issues and defenses not raised by the district.  The parent further asserts that the IHO's reliance on the lack of progress reporting for the 2024-25 school year at issue was misplaced, and thus, the IHO essentially used the parent's failure to enter documents that did not exist at the time of the impartial hearing as a basis for precluding relief.  Additionally, the parent argues that neither she nor Foundry was required to obtain or perform evaluations of the student, and the district's failure to do so should not preclude an award of tuition funding in this matter.

The parent also argues that the IHO ruled against her for failing to provide "data, program books, session notes specific data on observable behavior, documentation regarding formal assessments, educational plans, goals, [and] the VB-MAPP," which, again, held the parent to a standard more akin to beyond a reasonable doubt rather than to a preponderance of the evidence standard.  According to the parent, her witnesses' detailed testimony about Foundry, together with the documentary evidence including two neuropsychological evaluations and information concerning Foundry's program and the student's program and supports at school, were sufficient to find that the unilaterally-obtained special education program was appropriate to meet the student's needs and delivered specially designed instruction to permit him to benefit from instruction.  Overall, the parent argues that the IHO's decision was not supported by the "great weight of the evidence."

Next, the parent asserts that the IHO erred by finding that Foundry was not appropriate because it did not offer methodologies (i.e., "DIR/Floortime and dance/movement") in addition to ABA, and as recommended in the student's neuropsychological evaluation.  The parent further asserts that the IHO failed to consider the psychologist's testimony and used a quote out of context in reaching this determination.  According to the parent, the evidence in the hearing record did not demonstrate that the student required the aforementioned methodologies to make progress, and the IHO's requirement that the parent establish "actual and significant progress" was contrary to the prohibition against considering retrospective evidence.  Similarly, the parent argues that the IHO erred by finding that she was required to obtain a "medication consult" or to collaborate with medical professionals to develop a "treatment plan" for the student.  As a speculative determination, the parent notes that even if the IHO was correct, it would not result in a finding that Foundry was not an appropriate unilateral placement.

The parent also argues that the IHO improperly called for the production of the student's March 2023 IEP and gave undue weight to the contents therein as part of the IHO's analysis of the issues in this matter.  For example, the parent contends that, rather than using the March 2023 IEP to complete the hearing record, the IHO relied on the IEP as a "source of facts" in reaching her determinations about the appropriateness of Foundry and transportation services.  The parent further asserts that the IHO ignored her right to preclude evidence that was not timely disclosed (i.e., five days prior to the impartial hearing) and precluded the parent's right to review the IEP and object to its inclusion in evidence.  As a result, the parent contends that the IHO's actions demonstrated evidence of bias against her.

With respect to the IHO's finding that the parent failed to sustain her burden to establish the appropriateness of the student's home-based ABA services, the parent argues that, while the IHO pointed to "several enumerated factors" in reaching this finding, those "factors" were "largely irrelevant" and did not warrant a denial of funding.  The parent contends that the "uncontroverted testimony and documentary evidence" she presented established the necessity of the home-based services, which the student required in order to "maintain and retain skills" and to prevent regression.

Next, the parent argues that the IHO erred by failing to address equitable considerations, which weigh in favor of the parent's requested relief.

Turning to the issue of transportation services, the parent argues that the IHO's rulings were inconsistent because the IHO only awarded relief from the date of the decision through the conclusion of the 2024-25 school year rather than for the entire 12-month school year.  The parent also argues that the IHO erred by relying on the March 2023 IEP—or a subsequently developed IEP—as a basis for awarding transportation relief.  The parent asserts that the IHO erred by finding that she did not timely request transportation services from the district and that the rate set by the IHO to fund the student's transportation was arbitrary and capricious and against the weight of the evidence.

As a final point, the parent contends that the IHO—through her "argumentative behavior toward, comments to/about, and questions of the parent's attorney and the parent's witnesses over the course of the hearing"—demonstrated "animus and bias" against her and her attorney, which deprived the parent of her due process rights.  The parent notes that the IHO cut off her attorney and the witnesses while they were testifying and was "critical" of the witnesses' responses.  In addition, the parent notes that the IHO "repeatedly made comments about [the witnesses'] credibility, reliability and the lack thereof."  In particular, the parent notes that the IHO "vehemently critiqued" her attorney for using the term "'confused' when the IHO misremembered the procedural posture of the case," but then used the same term repeatedly herself and stated at one point in the proceeding that a witness was "experiencing 'confusion.'"  The parent asserts that the IHO's conduct constitutes reversible error.

As relief, the parent seeks an order directing the district to fund the costs of the student's tuition at Foundry, home-based ABA services (20 hours per week), and round-trip transportation for the 2024-25 school year.

In an answer, the district responds to the parent's allegations and generally argues to uphold the IHO's decision in its entirety.  More specifically, the district argues that the IHO properly concluded that Foundry was not an appropriate unilateral placement for the student because the parent also obtained home-based ABA services to make up for deficiencies in the Foundry program.  The district also argues that the IHO correctly determined that Foundry was not appropriate, especially given the "amount of data" Foundry claimed to collect but that the parent failed to enter into evidence.  For example, the district notes that the hearing record was devoid of the following: data collected—and stored in a system at Foundry—by a BCBA on a weekly basis, the student's program or annual goals, the annual VB-MAPP assessment of the student, and evaluations.  The district also notes that the parent failed to produce any progress reports with respect to the student's BIP.  The district asserts that, without evidence about the student's program and annual goals, it is unclear whether Foundry provided the student with specially designed instruction to meet his needs.  In addition, the district asserts that the hearing record was devoid of evidence that Foundry implemented the psychologist's recommendations for dyadic work, DIR/Floortime, dance/movement therapy, and a medication consult.  According to the district, the evidence reflects that the student made little progress at Foundry, as he continued to self-injure and exhibit disruptive and dangerous behaviors, his attention to tasks remained brief, and the student continued to display limited social skills and limited language skills.

The district further argues that the IHO properly found that the home-based ABA services were not appropriate because the evidence demonstrated that the home-based program was used to generalize skills.  In addition, the district notes that the psychologist who recommended home-based ABA services in the neuropsychological evaluation report did not have a sufficient basis upon which to make such a recommendation.  For example, the district points to the psychologist's lack of familiarity with the student, his deficiencies, and his needs; the testing conducted in 2024 took two hours; the psychologist never observed the student in the classroom; and the psychologist admitted in testimony that he did not review any "Foundry documentation, failed to communicate with the [home-based ABA] providers, and conceded that the [s]tudent's developmental delays made it difficult to evaluate his needs."  According to the district, testimony about the student's educational program at Foundry—as a school day program that met his needs—by the director, should have been afforded more weight than the recommendation for home-based ABA services in the neuropsychological evaluation report.  Moreover, the district notes that the psychologist's testimony supported a finding that the home-based ABA services supported the generalization of skills the student acquired at school.  The district asserts that, although the student may have benefitted from the home-based ABA services, the benefit was to generalize skills, and thus, was not available for IDEA funding.

In further support of the IHO's finding, the district argues that when the psychologist made the recommendation for home-based ABA services, he did not consider the student's age, the length of the student's school day, or the student's commute to Foundry.  The district asserts that, when considering these factors, the student was "subjected to exceedingly long days of nearly unceasing instruction."

With respect to the upholding the IHO's denial of funding for transportation, the district argues that adult support was not required because the student's Medicaid nurse accompanied the student to and from school and throughout the school day at Foundry.  The district also asserts that, alternatively, any transportation award should be limited to $150.00 per day, and should be conditioned on the parent providing itemized receipts for services obtained.

Overall, the district asserts that, contrary to the parent's contentions, the IHO applied the correct evidentiary burdens, and although the parent and Foundry may not have been obligated to evaluate the student, the parent was still required to establish that the unilaterally-obtained special education program provided specially designed instruction to meet the student's needs, which the parent failed to do in this matter.  In addition, the district asserts that, contrary to the parent's contentions, progress is a relevant consideration when assessing the appropriateness of a unilateral placement.  Finally, with regard to the parent's claims of IHO bias, the district asserts that the IHO, while brusque, was equally brusque with both parties and at one point in the proceedings, the IHO extended an apology to the parent's attorney.

 As a cross-appeal, the district argues for rejecting the parent's additional documentary evidence submitted for consideration on appeal.  The district seeks to uphold the IHO's decision and dismiss the parent's appeal.

In a "Reply Brief," the parent responds to the district's cross-appeal, arguing that the exclusion of the additional documentary evidence—and in particular, proposed exhibits D through J—would distort the hearing record and deprive the parent of a "full and fair review" with regard to the appropriateness of the unilateral placement.  The parent also continues to argue that Foundry and the home-based ABA services were appropriate to meet the student's needs, and points to portions of the Foundry director's testimony, portions of the psychologist's testimony, and portions of the home-based ABA provider's testimony as support.  The parent also argues that, with regard to transportation, the student's behaviors created a safety risk and therefore, the district's assertion that the student had adult support during transportation was unsupported.  In addition, given that the hearing record did not include any evidence of unreasonableness of cost for transportation, the parent argued that the district's proposed flat rate of $150.00 per day was arbitrary and unsupported.  Finally, the parent continues to argue that the IHO demonstrated bias and animus toward the parent and her attorney at the impartial hearing, and the cumulative effect of the IHO's conduct deprived the parent of a fair hearing and warrants a reversal.

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]).[19]

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

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

VI. Discussion

A. Preliminary Matters

1. Scope of Review

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

Next, and as noted previously, the IHO made several credibility findings in the decision.  More specifically, the IHO—when analyzing the appropriateness of Foundry and the home-based ABA services—determined that Foundry's director of operations was not credible, the Foundry director's testimony was not wholly credible, and the parent was not a credible witness (see IHO Decision at pp. 32-33).  In addition, the IHO found that the psychologist's "opinion and evaluation" were "diminished" based on several factors, and the ABA provider's testimony was not "fully probative" regarding the student's need for home-based ABA services, and, therefore, gave little if any weight to portions of the witnesses' testimony when determining whether Foundry or the home-based ABA services were appropriate to meet the student's needs (id.).

Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).  To the extent that the parent does not challenge or even acknowledge the IHO's adverse credibility findings on appeal with respect to Foundry's director of operations, Foundry's director, and the parent, these credibility determinations have become final and binding on the parties and will not be further reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z., 2013 WL 1314992, at *6-*7, *10).

2. Additional Documentary Evidence

The parent submitted additional documentary evidence for consideration on appeal (see Req. for Rev. Exs. A-J).  In support of admitting the additional documentary evidence, the parent contends that the proposed exhibits A and B should be considered part of the hearing record pursuant to State regulation, while exhibit C should be considered since the IHO admitted the student's 2023-24 IEP into the hearing record (see Parent Mem. of Law at pp. 6-7).  With respect to proposed exhibits D through J, the parent asserts that these documents—which relate to the student's progress at Foundry and with respect to his home-based ABA services—did not exist at the time of the impartial hearing and are necessary to reach a decision in this matter (id. at p. 7, citing 8 NYCRR 279.10).  The parent argues that she was unaware that the IHO would consider the student's progress, which was not raised in the due process complaint notice, as a factor in her appropriateness analysis and that the IHO sua sponte raised the student's alleged lack of progress and the absence of an updated BIP at Foundry as issues weighing in her analysis (see Parent Mem. of Law at p. 7).  Subsequently, in the parent's response to the district's cross-appeal, the parent contends that several of the proposed exhibits were "either created after the disclosures to the IHO were required or were not available in the finalized form at the time of testimony," and therefore, precluding the consideration of these documents elevates form over function and "ignores the realities of private school data collection and submission timelines and the procedural constraints placed" on the parent at the impartial hearing.  According to the parent, the additional documentary evidence would only serve to corroborate testimony, and not transform her claims on appeal.

The district objects to the consideration of the parent's proposed exhibits (see Answer & Cr. App. ¶ 4).  The district argues that the proposed exhibits should not be considered on appeal, because the parent is now attempting to rehabilitate the hearing record with regard to the lack of evidence initially presented to the IHO for her consideration at the impartial hearing.  According to the district, admitting and considering the parent's proposed exhibits on appeal acts to effectively shield such evidence from cross-examination.  The district also argues that, although the parent asserts that several proposed exhibits did not exist at the time of the impartial hearing, the information within those documents was nevertheless available.  Additionally, the district asserts that the parent offers no explanation for the relevance of any of the proposed exhibits with regard to the issues raised in the parent's appeal.

Generally, documentary evidence not presented at an impartial hearing is considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).  The factor specific to whether the additional evidence was available or could have been offered at the time of the impartial hearing serves to encourage full development of an adequate hearing record at the first tier to enable the IHO to make a correct and well supported determination and to prevent the party submitting the additional evidence from withholding relevant evidence during the impartial hearing, thereby shielding the additional evidence from cross-examination and later springing it on the opposing party, effectively distorting the State-level administrative review and transforming it into a trial de novo (see M.B. v. New York City Dep't of Educ., 2015 WL 6472824, at *2-*3 [S.D.N.Y. Oct. 27, 2015]; A.W. v. Bd. of Educ. of the Wallkill Cent. Sch. Dist., 2015 WL 1579186, at *2-*4 [N.D.N.Y. Apr. 9, 2015]).  On the other hand, both federal and State regulations authorize SROs to seek additional evidence if necessary, and SROs have accepted evidence available at the time of the impartial hearing when necessary (34 CFR 300.514[b][2][iii]; 8 NYCRR 279.10[b]; Application of a Student with a Disability, Appeal No. 08-030; Application of a Child with a Disability, Appeal No. 00-019 [finding it necessary to accept evidence available at the time of the impartial hearing to determine the student's pendency placement]).

A review of the proposed documents reveals the following: exhibit A, the pendency implementation form, is already a part of hearing record; exhibit B, an email exchange surrounding the production of the student's 2023-24 IEP did not exist at the time of the impartial hearing, but it is not now necessary in order to reach a decision, as the 2023-24 IEP, itself, is already a part of the hearing record; exhibit C, a copy of the unappealed IHO decision that formed the basis for pendency services, existed at the time of the impartial hearing and the parent offers no explanation for the failure to present the document at the impartial hearing and no explanation for why this document is now necessary to reach a decision, as the student's pendency services are not in dispute on appeal; exhibit D, a Foundry BIP dated September 6, 2024, existed at the time of the impartial hearing and the parent offers no explanation in the request for review for the failure to present the document at the impartial hearing;[20] and exhibits E, G, H, I, and J are various progress reports dated December 2024 through February 2025 for ABA services, OT, PT, and speech-language therapy, and while none of these documents existed at the time of the impartial hearing, the parent does not explain in the request for review why any of the documents are now necessary to reach a decision; and exhibit F, a BIP dated December 2024, did not exist at the time of the impartial hearing, but the parent does not explain in the request for review why it is now necessary to reach a decision (see Pendency Impl. Form at pp. 1-2; IHO Ex. III; see generally Req. for Rev.).

To be clear, the parent's only assertion in the request for review is a request for the undersigned to consider proposed exhibits D through J because the documents did not exist at the time of the impartial hearing (see Req. for Rev. ¶ 7).[21]  After the district objected to the parent's request to consider the additional documentary evidence, the parent argues in her reply that she "provided a detailed explanation in the Request for Review that several of the proposed exhibits—including the Foundry [BIP] and Foundry progress reports—were either created after the disclosures to the IHO were required or were not available in the finalized form at the time of testimony" (Reply Br. ¶ I at p. 2).  But contrary to the parent's contention in the reply, the request for review included one statement, as noted above, as the basis for considering the proposed exhibits.  In addition, although the parent attempts to shift blame to the IHO and her alleged "hostility and the tight evidentiary constraints she imposed" as a rationale for not disclosing the Foundry BIP prior to the September 10, 2024 impartial hearing date, the parent does not assert any arguments why the information contained within the BIP—or for that matter, any of the proposed exhibits D through J—could not have been presented, at least in part, through the testimony of either Foundry staff or the home-based ABA providers or why the parent had not presented evidence in the form of the weekly summaries the parent received about the student's progress (see generally Req. for Rev.; Reply Br.).[22]  Additionally, a review of the discussions at the prehearing conference, together with the substance of the IHO's prehearing order, reflects that neither party raised any concerns with the instructions provided by the IHO, with regard to the prehearing order, or with regard to the specific order directing both parties to disclose witness lists and exhibits five business days before the scheduled hearing date.  Indeed, the parent's attorney did not raise any concerns about the prehearing order or that the parent may have had additional documentary evidence forthcoming, but was then not currently available for disclosure. 

In addition, to the extent that the parent asserts that the proposed progress reports would only serve to "corroborate" testimony in the hearing record, rather than "transform" it, this assertion severely undercuts the parent's request to consider the additional documentary evidence as being necessary to reach a decision in this matter (see Reply Br. ¶ I at p. 2).

Thus, overall, while many of the proposed exhibits may not have existed at the time of the impartial hearing, the parent offers no explanation for why the same documents are now necessary to reach a decision in this matter; as a result, I will exercise my discretion and decline to consider the proposed additional documentary evidence on appeal.

3. IHO Bias

Here, the parent contends that the IHO demonstrated bias and animus against the parent during the impartial hearing through her "argumentative behavior," "comments to [or] about," and questions directed at the parent's attorney and witnesses, which deprived the parent of her right to due process.  According to the parent, the IHO "repeatedly cut off" her attorney and "criticized him"; the IHO "repeatedly cut off" the parent and her witnesses during testimony; the IHO was "critical" of witnesses' responses; and the IHO "repeatedly made comments" about the witnesses' "credibility, reliability, and the lack thereof."

The district asserts that, although the IHO may have been "a bit brusque," she was equally "brusque with both parties."  The district also notes that the IHO "never expressed anything rising up to the level of animus to any party," and at one point during the impartial hearing, extended an apology to the parent's attorney for a misunderstanding.

It is well settled that an IHO must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 12-066).  Moreover, an IHO, like a judge, must be patient, dignified, and courteous in dealings with litigants and others with whom the IHO interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, according each party the right to be heard, and shall not, by words or conduct, manifest bias or prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 12-064).  An IHO may not be an employee of the district that is involved in the education or care of the child, may not have any personal or professional interest that conflicts with the IHO's objectivity, must be knowledgeable of the provisions of the IDEA and State and federal regulations and the legal interpretations of the IDEA and its implementing regulations, and must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice (20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).

When reviewing the transcripts of the impartial hearing, it is apparent that the IHO kept control of the proceedings by providing guidance and instructions to the parties and their attorneys initially at the prehearing conference and as memorialized in the prehearing conference summary and order (see Tr. pp. 1-18; see generally IHO Ex. I).  The transcripts reveal that the IHO, at times, intervened during exchanges directly with the parties' respective attorneys (see, e.g., Tr. pp. 2-3, 7-10).  For example, at the prehearing conference, the IHO asked the district's attorney how the district intended to proceed in this matter, and when the attorney indicated that he believed it was "still under investigation," the IHO interrupted and explained that, in light of timelines and compliance dates and the purposes of prehearing conferences, the district was "required to make a determination" so the parent's attorney would know how to proceed (Tr. pp. 2-3).  The IHO then asked the district's attorney a direct question about his intention with regard to presenting a case to defend the district (see Tr. p. 3).  During the parent attorney's opening statement, the IHO interrupted when she believed the attorney was providing irrelevant information about the student's history (see Tr. p. 35).  However, when the parent's attorney clarified the date of the information, the IHO apologized, noting that she had misheard it (see Tr. p. 36).

It also appears that, in an effort to maintain control of the proceedings and to conduct an efficient process, the IHO, at times, intervened during a witness's questioning—whether by the parent's attorney or by the district's attorney—to clarify the question asked or the response given or to otherwise instruct the process (see, e.g., Tr. pp. 56, 128).  For example, during the direct examination of Foundry's director of operations but after the parent's attorney completed a question, the IHO objected and indicated that the question, as posed, lacked merit because it was "self-serving" (Tr. p. 56).  At that point, the parent's attorney withdrew the question (id.).  Similarly, during cross-examination of the same witness, the IHO—after the district's attorney completed a question somewhat unartfully—the IHO directed the attorney to "ask your question" because she could not understand it as posed (Tr. pp. 59-60).  After both parties completed their respective questioning of this witness, the IHO asked the witness her own questions (see Tr. pp. 64-70).  The IHO also asked questions of the parent's second witness for clarification purposes, but only after both parties had completed their respective questioning of the witness (see Tr. pp. 91-107).  The second witness's testimony concluded after redirect and recross examinations, as well as a few additional questions from the IHO (see Tr. pp. 107-12).  During the redirect of the parent's third witness, the IHO instructed the parent's attorney that he could not ask leading questions of his own witness; the parent's attorney denied that it was a leading question and then he and the IHO continued to disagree about whether the parent's attorney had asked a leading question (see Tr. p. 126).  The IHO then stated that she would not allow leading questions because she "need[ed] to know what this witness kn[ew]" and not whether the witness "agree[d] with [the attorney or], with a statement that [the attorney] put in a question" (id.).  The IHO also allowed the parent's attorney to rephrase the question, which he did (see Tr. pp. 126-27).  The IHO also asked questions of the parent's third witness for "completion and clarification" of the hearing record after both parties finished their respective questioning of the witness (Tr. pp. 127-46).

On the fourth and final day of the impartial hearing, the proceeding began on a somewhat tenuous note, because the IHO initially indicated that the parties still needed to present opening statements and enter evidence into the hearing record and when the parent's attorney questioned whether additional matters remained before the cross-examination of a witness, the IHO retorted: "I just said.  You're not listening.  Don't we have openings, and don't we have—or is this a continuation?" (Tr. p. 155).  The parent's attorney stated, "No, you're confused" . . . "This is a continuation of the hearing" (Tr. pp. 155-56).  The IHO apologized, and the impartial hearing proceeded (see Tr. p. 156).  Thereafter, the parent's fourth witness was introduced, and the IHO stated to the parent's attorney that, "to be clear, [she was] not confused" but instead, was "mistaken"; however, the IHO and the parent's attorney continued to spar over this point until the IHO noted the need to move forward and not waste the witness's time (Tr. pp. 156-57).

As the fourth witness's testimony continued, the IHO asked questions during cross-examination, which clarified points of the witness's testimony (see Tr. pp. 159-60, 165-66).  At one point, the parent's attorney made an objection, noting that the IHO was "nodding [her] head encouraging" the question from the district's attorney (Tr. p. 163).  The IHO indicated that she was not aware that she was nodding her head, and explained that she was turning her head from screen to screen; however, the IHO did note the parent attorney's argument on the record (see Tr. pp. 163-64).  Subsequently, the parent's attorney made another objection, noting that it was "inappropriate for [the IHO] to jump in and ask these questions" when the district's attorney represented the district (Tr. pp. 166-67).  When the parent's attorney continued to press the issue, the IHO reminded him that she was "allowed to ask clarifying and completion questions when the witness just testifies generally and vaguely without giving [her] a frame of reference for a date" (Tr. p. 167).  Shortly thereafter, the IHO commented that the parent's attorney was "being very contentious with everyone" (Tr. pp. 169-70).

To be clear, while each and every instance referenced by the parent in her pleadings has not been individually addressed in this decision, each and every instance referenced by the parent has been examined, both individually and collectively, and overall, they do not support a determination that the IHO was biased or demonstrated animus toward the parent or her attorney during the impartial hearing.  Certainly, it appears that terse exchanges occurred, albeit infrequently, during the impartial hearing.  However, to the extent that the parent disagrees with the conclusions reached by the IHO based on statements in the hearing record, such disagreement does not provide a basis for finding actual or apparent bias by the IHO (see Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 [2d Cir. 2009] [finding that "[g]enerally, claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a reasonable basis for questioning a judge's impartiality"]; see also Liteky v. United States, 510 U.S. 540, 555 [1994] [identifying that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion"]; Application of a Student with a Disability, Appeal No. 13-083).  Consequently, the parent's arguments must be dismissed.

4. Conduct of the Impartial Hearing

The parent argues that the IHO violated her due process rights by sua sponte addressing matters not disputed, and by "procuring and utilizing" the student's March 2023 IEP to deny the parent's requests for relief without allowing the parent's attorney any opportunity to review the March 2023 IEP or state a position with respect to it.

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 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]).

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 (Letter to Anonymous, 23 IDELR 1073).  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.

At the impartial hearing, the district's attorney presented an opening statement briefly outlining the district's position, and thereafter, the IHO sought clarification from the district with regard to equitable considerations and more specific information regarding why the district was asserting the parent's unilateral placement was not appropriate for the student (see Tr. pp. 29-32).  The parent's attorney then presented a lengthier opening statement, and during a discussion about whether the hearing record contained evidence of the parent requesting transportation services from the district, the IHO asked the district's attorney why a copy of the student's 2023-24 IEP had not been provided, at a minimum, for background purposes (see Tr. pp. 32-40).  The IHO then called for the production of the March 2023 IEP "for completion of the [hearing] record for background," and noted that it would be marked as an IHO exhibit (see Tr. p. 40).

Although the IHO did not expressly seek input from either party regarding the inclusion of the March 2023 IEP as evidence in the hearing record, neither party objected or otherwise raised any concerns with the IHO's directive to produce the IEP at that time, and the impartial hearing proceeded to its conclusion (see Tr. pp. 40-274).  However, as the IHO noted in the decision, notwithstanding the directive to produce the March 2023 IEP at the impartial hearing, it was not produced until January 15, 2025, "despite multiple requests for the document" (IHO Decision at pp. 4, n.2, 36).  A review of the IHO's decision reflects that, consistent with the IHO's stated intention, she relied on the March 2023 IEP for limited purposes with regard to her analysis of the parent's unilateral placement and to complete the hearing record.  In one instance, the IHO incorporated information from the March 2023 IEP into the decision in order to identify the student's pre-academic and academic skill levels, as well as reporting information from an OT progress report and the student's use of an assistive technology device (see IHO Decision at pp. 27-28; IHO Ex. III at pp. 1-2, 5).  The IHO also relied on information in the March 2023 IEP as part of her analysis of the home-based ABA services, noting that the student had nurses to assist with "hygiene related tasks" (IHO Decision at p. 35).  However, the overwhelming majority of the IHO's analysis of the parent's unilateral placement relied upon the parent's documentary and testimonial evidence presented at the impartial hearing (see IHO Decision at pp. 4-34).

Next, the IHO turned to the March 2023 IEP when discussing the parent's request for reimbursement of the costs of the student's transportation services and the parent's failure to produce any evidence on this issue (see IHO Decision at p. 36).  Here, the IHO used the March 2023 IEP to describe the transportation services the student was entitled to receive (id.).  The IHO next referenced the parent's testimony about her efforts, or lack thereof, to seek transportation services from the district (id.).  The IHO then used the recommended transportation services in the March 2023 IEP as the basis for ordering the district to provide transportation services to the student (id.).

Overall, the parent's arguments are not persuasive.  State regulations grant an IHO broad discretion in conducting an impartial hearing, and in this instance, the IHO's directive to produce the March 2023 IEP and her very limited reliance on that document do not run afoul of that discretion.  The parent's contentions must be dismissed.

B. Unilateral Placement

As noted above, it is undisputed that the district failed to offer the student a FAPE for the 2024-25 school year.

Here, the parent seeks funding for the costs of the student's tuition at Foundry; 20 hours per week of unilaterally-obtained, home-based ABA services; and transportation services (see Req. for Rev. at p. 10; Parent Ex. A at pp. 9-10).  The IHO, having found that the parent failed to sustain her burden to establish the appropriateness of student's unilateral placement at Foundry and the appropriateness of the unilaterally-obtained, home-based ABA services, denied the full amount of the parent's requested relief because the IHO found that the parent failed to provide sufficient evidence that the program was necessary for the student to make progress during the 2024-25 school year (IHO Decision at pp. 21-22).  Based on the facts of this case and the length of time it took to reach this point in the proceeding, I find that it is unnecessary to reach a conclusion on whether the IHO correctly determined the appropriateness of the unilaterally obtained special education services or whether equitable considerations warrant a reduction in relief because the parent has obtained all of the relief she sought pursuant to pendency.  In other words, there is no longer a live controversy.

A dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. Jan. 2, 2018]; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 [S.D.N.Y. 2012]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *12 [E.D.N.Y. Oct. 30, 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 [2012]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]).  In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 [N.D.N.Y. 2013]; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 [E.D.N.Y. 2010]; Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4; but see A.A. v. Walled Lake Consol. Schs., 2017 WL 2591906, at *6-*9 [E.D. Mich. June 15, 2017] [considering the question of the "potential mootness of a claim for declaratory relief"]).  Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).

There is no dispute that the district was required to fund the costs of the student's tuition at Foundry, 20 hours per week of individual, home-based ABA services, and transportation services with a health paraprofessional for the 12-month, 2024-25 school year pursuant to the parties' pendency agreement (see Pendency Impl. Form at pp. 1-2).[23]  While a student is entitled to remain in his or her stay-put placement during the pendency of a proceeding, this statutory protection is similar to preliminary injunctive relief to protect the student while the proceedings are pending and is distinct from the ultimate relief available to a parent through the due process proceedings (20 U.S.C. § 1415 [j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]).  However, in this instance, the student received services under pendency for the entirety of the 12-month 2024-25 school year and past the projected date for annual review for developing a new IEP for the student in or around April 2025, and the parent's due process complaint notice requested the same services for both pendency and the ultimate relief as part of the hearing (see Parent Ex. A at pp. 1, 9-10).  During the impartial hearing, the student's pendency program was resolved through the execution of the pendency implementation form, dated August 12, 2024, which was retroactive to the date of the due process complaint notice, July 1, 2024 (see Tr. pp. 20-23; Pendency Impl. Form at p. 2); moreover, during the appeal, the parent's attorney represented, in correspondence to this office requesting an extension, that the student was receiving services pursuant to pendency.  Accordingly, the parent has received all the relief sought in this proceeding.

However, a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23 [1988]; Toth, 720 Fed. App'x at 51; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040).  The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]).  It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see Knaust, 157 F.3d at 88).  Many IEP disputes escape a finding of mootness due to the short duration of the school year facing the comparatively long litigation process (see Lillbask, 397 F.3d at 85).  Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]; Toth, 720 Fed. App'x at 51; see Hearst Corp., 50 N.Y.2d at 714-15).  To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 [2d Cir. 2001]).  Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Russman, 260 F.3d at 120; but see A.A., 2017 WL 2591906, at *7-*9 [finding that the controversy as to "whether and to what extent the [s]tudent can be mainstreamed" constituted a "recurring controversy [that] will evade review during the effective period of each IEP for the [s]tudent"]; see also Toth, 720 Fed. App'x at 51 [finding that a new IEP that did not include the service requested by the parent established that the parent's concern that the prior IEP would be repeated was not speculative and the "capable of repetition, yet evading review" exception to the mootness doctrine applied]).

Some courts have taken a dim view of dismissing a Burlington/Carter reimbursement case as moot because all of the relief has been obtained through pendency (New York City Dep't of Educ. v. S.A., 2012 WL 6028938, at *2 [S.D.N.Y. Dec. 4, 2012]; New York City Dep't of Educ. v. V.S., 2011 WL 3273922, at *9-*10 [E.D.N.Y. Jul. 29, 2011]), while others have found it an acceptable manner of addressing matters in which the relief has already been realized through pendency (see V.M., 954 F. Supp. 2d at 119-20 [explaining that claims seeking changes to the student's IEP/educational programing for school years that have since expired are moot, especially if updated evaluations may alter the scrutiny of the issue]; Thomas W. v. Hawaii, 2012 WL 6651884, at *1, *3 [D. Haw. Dec. 20, 2012] [holding that once a requested tuition reimbursement remedy has been funded pursuant to pendency, substantive issues regarding reimbursement become moot, without discussing the exception to the mootness doctrine]; F.O., 899 F. Supp. 2d at 254-55; M.R. v. S. Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *9 [S.D.N.Y. Dec. 16, 2011]; M.S., 734 F. Supp. 2d at 280-81 [finding that the exception to the mootness doctrine did not apply to a tuition reimbursement case and that the issue of reimbursement for a particular school year "is not capable of repetition because each year a new determination is made based on [the student]'s continuing development, requiring a new assessment under the IDEA"]).

Initially, review of the district court decision in V.S., shows that matter was determined not to be moot because a decision as to the adequacy of the proposed IEP in that matter would have supplanted the student's then-current pendency placement and established a new educational placement for the student (V.S., 2011 WL 3273922, at *10).  However, in this matter, neither party has appealed from the IHO's determination that the district failed to offer the student a FAPE for the 2024-25 school year and the parties entered into an agreement as to the student's pendency placement during the course of this proceeding, which is the same program the parent asserts was an appropriate program for the student for the 2024-25 school year (see generally Req. for Rev.; Answer & Cr. App.; Reply).[24]  Accordingly, there can be no pendency changing determination in this proceeding and there is no further relief that could be addressed in this matter that is ongoing and remediable.

Additionally, the capable of repetition yet evading review exception to mootness would not apply because the conduct complained of—the district's failure to offer the student a FAPE—is no longer at issue in this proceeding.  Rather, the parties' dispute centers around whether the parent's unilaterally-obtained special education program—i.e., Foundry and 20 hours per week of home-based ABA services—were appropriate and, thus, whether the parent is entitled to funding for such services, which, at this point, the parent should have received through pendency.  As the FAPE determination has already been addressed and the only issues in this matter relate to the funding of the unilaterally-obtained special education program (including transportation), which is relief that has already been provided through pendency, any parental concern that the district would continue to recommend the same program is not addressable at this level of the proceeding and cannot be used to justify a finding that the matter is capable of repetition, yet evading review.  While the Second Circuit has noted that "IEP disputes likely satisfy the first factor for avoiding mootness dismissals" because "judicial review of an IEP is 'ponderous'" (Lillbask, 397 F.3d at 87), this does not seem to be a concern in this matter as the IEP dispute has been removed.  Without an IEP dispute, the question of the unilaterally-obtained special education program delivered to the student could be made in a much shorter time frame.  More pertinently, however, because there is no longer a dispute as to the student's educational programming, there is no district action "capable of repetition, yet evading review."  As such, the issue of whether the unilaterally-obtained special education program is appropriate, unlike FAPE, does not fit into the mootness exception as it is not capable of repetition yet evading review.

However, even assuming for the sake of argument that the issues presented in the parent's appeal were not moot, an independent review of the evidence in the hearing record supports the IHO's findings that the parent failed to sustain her burden to establish the appropriateness of the student's unilateral placement at Foundry and the appropriateness of 20 hours per week of individual, home-based ABA services.  This is especially true where, as here, the crux of parent's arguments on appeal generally challenge the weight the IHO afforded to the evidence, and because the parent has not challenged the IHO's credibility findings, this limits the evidence available for consideration with regard to the appropriateness of the parent's unilaterally obtained special education program.  Contrary to the parent's assertions, the documentary evidence in the hearing record is not sufficient to overturn the IHO's findings.

Overall, after independently reviewing the hearing record and upon consideration of the parties' respective arguments on appeal, the evidence does not support the parent's arguments to reverse the IHO's determinations that the unilateral placement, consisting of Foundry and 20 hours per week of individual, home-based ABA services were appropriate (see IHO Decision at pp. 22-35).  Instead, the evidence in the hearing record demonstrates that the IHO carefully and accurately recounted the issues to be resolved at the impartial hearing, the positions of the parties, as well as the procedural and factual background of the case (id. at pp. 1-22).  In addition, the hearing record reflects that the IHO accurately identified and analyzed the crux of the parent's arguments, applied the correct legal standard without requiring the parent to meet a higher legal standard, and relied on the relevant facts and evidence in order to reach her conclusions of law on these issues (id. at pp. 1-35).  The IHO's decision also shows that the IHO carefully recited and considered the testimonial and documentary evidence presented by both parties, and furthermore, that she carefully marshaled and weighed the evidence in support of her conclusions (id.).

With respect to Foundry, the hearing record includes a "2024-25 On-Site Program Description" (program description), which describes Foundry as an "intensive 1:1 school program utilizing principles of [ABA] to teach children with special needs" (Parent Ex. I).  More specifically, the program description indicates that Foundry provided students with 12-month programming, consisting of 30 or more hours per week of instruction in "basic language and communication skills, social, play and leisure skills, adaptive living skills, and academics" (id.).  According to the program description, Foundry's "primary goal" was to "teach the skills required for each [student] to function in less restrictive settings and to foster autonomy" (id.).  In addition, the program description notes that students received "1:1" instruction from "[b]ehavior [t]echnicians trained in [ABA], and classrooms [we]re led by a Board Certified Behavior Analysts (BCBAs)" (id.).  The program description further indicates that each student's "curriculum [wa]s individually developed by the BCBA as well as [Foundry's] Academic Director, and [was] designed based on language, behavior, and academic-based assessments conducted yearly" (id.).  Additionally, the program description indicates that Foundry collected data on a "daily [basis] so that all curriculum decisions [we]re evidence-based" (id.).

As further indicated in the program description, each student at Foundry was "instructed and supported by a 1:1 [b]ehavior [t]echnician throughout the entire school day," and received instruction on "skills ranging from pre-academic language and learning skills to Common Core standards academics, depending on their needs" (Parent Ex. I).  Additionally, the program description indicates that "[f]amilies receive[d] weekly newsletters and monthly data reports to inform them on school activities and progress, as well as two comprehensive progress reports per year" (id.).  In addition, the program description notes that Foundry held "three parent-teacher conferences per year" and parents were "encouraged to schedule classroom observations of their children" (id.).

In addition to the program description of Foundry, the hearing record includes a copy of the student's schedule for the 2024-25 school year (see Parent Ex. J).  Based on the schedule, the student attended Foundry from 9:00 a.m. to 3:00 p.m., Monday through Friday (id.).  The student's schedule was broken into 45 minute increments, and incorporated several activities, such as morning meeting and snack, verbal behavior instruction, direct instruction, centers or group instruction, related services (OT, speech-language therapy, and PT), lunch and recess, community outings and natural environment teaching, group art or movement, and story time or afternoon meeting (id.).  According to the schedule, the student was to receive one 45-minute session per week of individual PT, two 45-minute sessions per week of individual OT, two 45-minute sessions per week of individual speech-language therapy, and one 45-minute session per week of combined OT and speech-language therapy (id.).

In the decision, the IHO enumerated the types of evidence the parent failed to provide with respect to the appropriateness of Foundry, such as formal assessments, an educational plan or goals, related services assessments, the VB-MAPP that Foundry administered annually to the student to track progress, and progress reports for the 2024-25 school year at issue (see IHO Decision at pp. 23-24).  Contrary to the parent's contentions, the evidence that the IHO found lacking was not required in order to establish progress, but rather, it was necessary to establish the basic foundations of the educational program the student was receiving at Foundry, which, based on the evidence, delivered individual discrete trial ABA services to the student for 30 hours per week and which constantly collected data on the student's programs.  Absent this evidence, or credible testimony thereto, the IHO correctly found that the parent had failed to sustain her burden to establish the appropriateness of the student's unilateral placement at Foundry.

With respect to the 20 hours per week of home-based ABA services, the psychologist who conducted the student's May 2024 neuropsychological evaluation confirmed that he recommended home-based ABA services for the student in order to "ensure that the skills [the student] learned in school that day were effectively reinforced" (Tr. p. 122).  When asked if the home-based ABA services were to prevent regression, the psychologist explained that "this [wa]s all tied together," noting that if the student was working on certain skills at school that were "specific to school," and the student was also working on "life skills," then the student would have "difficulty generalizing skills from one setting to another" (Tr. pp. 122-23).  The psychologist further explained that, if the student learned a "life skill in school, then he would need that skill to be taught and reinforced in another context" and it would "help that [the student] already developed the skill in one context, but it [wa]s not automatically going to transfer" to another context (Tr. p. 123).  The psychologist noted that the student needed "support in order to make sure that whatever skills he [wa]s learning, that they [we]re able to come to fruition in other contexts as well" (id.).  More specifically, the psychologist testified that the recommendation for home-based ABA services was to "make sure that we we[re] bridging the gap between different contexts in which [the student] f[ou]nd himself" and to ensure that the "intensive way in which he [wa]s working on skills during the school day, that that g[ot] reinforced in other settings, such as the home setting" (id.).

As further explanation for recommending home-based ABA services, the psychologist testified that, given the student's "severe developmental delay," his life skill goals were also among his educational goals (Tr. p. 124).  For example, the psychologist noted that "you need life skills to function at school" and in "every context available," and if the student learned a "skill that ha[d] to do with supporting his life skills at school," "[t]hen we would not assume that he [wa]s going to be able . . . to apply that skill at home" and "further intervention" would be needed to make sure the student could transfer that skill to other contexts (Tr. pp. 124-25).  When asked if home-based ABA services supported the student in the classroom, the psychologist testified that, "with [this student's] profile, the more reinforcement and repetition he c[ould] get, the more he [wa]s going to be able to carry over skills from one day to the next, one week to the next" (Tr. p. 127).  The psychologist also testified that, "not only [wa]s it important to generalize skills to other contexts, but then learning and applying a skill in another context help[ed] to reinforce that skill more, more generally" (id.).  Therefore, according to the psychologist, "working on skills in other contexts c[ould] only help to reinforce skills that he [wa]s learning at school and his ability to apply them" (id.).

At the impartial hearing, one of the student's home-based ABA providers testified that he delivered four hours of ABA services per day to the student on Sunday, Tuesday, and Thursday (12 total hours), while the student's second ABA provider delivered two hours of ABA services per day to the student on Monday, Wednesday, Saturday, and Sunday (8 total hours) (see Tr. pp. 182, 192-93).[25]^, [26]  According to the ABA provider, the student received home-based ABA services because he needed "a lot of repetition," and the student needed more repetition to master skills that had not been mastered in school (Tr. pp. 194-95).  He also testified that, for this student, ABA services needed to be delivered "throughout the day, including the afternoon," and therefore, the home-based ABA services provided the student with "consistency throughout the day so he c[ould] continue having those interventions, continue learning, and not see[] regression" (Tr. p. 195).

With respect to what the home-based ABA providers worked on with the student, the ABA provider explained that the "data sheets and program book" would most accurately reflect that information, and not the "session notes," which were written to communicate with the parent about what was worked on with the student (Tr. pp. 209-10).[27]  The ABA provider testified that the program book was a "book of [the student's] progress," his "long-term" and "short-term" goals, and where the providers collected data (Tr. p. 210).

In discussing generalization of skills, courts have indicated that school districts are not required, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other settings outside of the school environment, particularly where it is determined that the student is otherwise likely to make progress, at least in the classroom setting (see, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]).

Given the psychologist's testimony that the student's home-based ABA services were for the purpose of generalizing skills learned at school, as well as the ABA provider's testimony that the services were used to maximize the student's potential, these bases, alone, do not warrant the provision of such services, and the IHO's finding that the home-based ABA services were not required is supported by the weight of the evidence in the hearing record.  Overall, while the evidence in the hearing record may support the IHO's conclusion that the home-based services may have benefitted the student and were understandably desired by the parent to be continued, the hearing record lacked proof that the home-based ABA services were necessary for the student to receive educational benefits from Foundry (C.G. v. New York City Dep't of Educ., 752 F. Supp. 2d 355, 359-60 [S.D.N.Y. 2010]; see Rowley, 458 U.S. at 189, 199-200; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

As a final point, with respect to the IHO's partial award of funding for special transportation services and the provision of special transportation upon the development of a new IEP for the student, such awards were error.  Having determined that the student's unilateral placement at Foundry was not appropriate, the parent was not entitled to reimbursement or funding for the costs of the student's transportation to and from Foundry during the 2024-25 school year.[28]  However, because the district was required to directly fund the costs of the student's special transportation pursuant to pendency for the 2024-25 school year, this issue is also moot.

Based on the foregoing, the matter is moot as there is no further relief that may be granted.

VII. Conclusion

Having found that the issues presented in this matter have now become moot, and alternatively, that the evidence in the hearing record supports the IHO's findings that the parent was not entitled to funding of the costs of the student's tuition at Foundry for the 2024-25 school year or for the costs of the student's home-based ABA services for the 2024-25 school year, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.