I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request for respondent (the district) to fund the costs of her son's tuition at the International Academy for the Brain (iBrain) for the 2024-25 school year. [1]^, [2]  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).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

The student has previously been the subject of prior State-level administrative review proceedings including an appeal involving the student's stay-put placement during the pendency of the present matter (Application of a Student with a Disability, Appeal No. 24-624; Application of a Student with a Disability, Appeal No. 24-175).[3]  The parties' familiarity with this matter is presumed, and, therefore, the facts and procedural history of this case and the IHO's decision will not be recited in detail.

Briefly, a CSE convened on June 5, 2024, and found the student eligible for special education services as a student with multiple disabilities (Dist. Ex. 1 at p. 1, 38).  The June 2024 CSE recommended the student attend an 8:1+1 special class, as well as an adapted physical education class, at a State-approved nonpublic school on a 12-month basis and that he receive related services and the support of 1:1 health paraprofessional services (id. at pp. 32-34).  In the interim, pending availability of a State-approved nonpublic school, the June 2024 CSE recommended the student attend an 8:1+1 special class placement, as well as an adapted physical education class, at a district specialized school (id.).  In terms of related services, the June 2024 CSE recommended the student receive four 60-minute sessions per week of individual occupational therapy (OT), five 60-minute sessions per week of individual physical therapy (PT), four 60-minute sessions per week of individual speech-language therapy, one 60-minute session per week of group speech-language therapy, and also recommended that the student be provided a dynamic display speech generating device as well as one 60-minute session per month of individual assistive technology services (id.).  The June 2024 CSE also recommended one 60-minute session per month of parent counseling and training for the parent (id. at p. 33).  The June 2024 CSE recommended special transportation services for the student consisting of transportation to and from the closest safe curb location to school, 1:1 paraprofessional services, a lift bus, a regular sized wheelchair, and door to door accommodations (id. at p. 37).

On June 15, 2024, the parent signed a contract with Sisters Travel and Transportation Services, LLC (Sisters Travel) for the round-trip transportation of the student between his home and iBrain during the 2024-25 school year (Parent Ex. A-F at p. 7).  On June 19, 2024, the parent signed an enrollment contract with the iBrain for the student's attendance during the 2024-25 school year (Parent Ex. A-E at p. 6).[4]

A. Due Process Complaint Notice and Subsequent Facts

In a due process complaint notice dated July 2, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year on procedural and substantive grounds (see Parent Ex. A at pp.7-9).  The parents alleged that the district failed to: evaluate the student in all areas of suspected need ;convene an appropriate CSE meeting for the 2024-25 school year; recommend or provide appropriate related services for 2024-25 school year; provide the parents with meaningful participation in the educational planning process; recommend appropriate special education transportation services and accommodations; consider alternative placement options at the June 2024 CSE meeting engaging in impermissible predetermination;  or offer an appropriate school location for the 2024-25 school year (id. at pp. 7-9).  As relief, the parents sought funding of the costs of the student's tuition and supplemental tuition to attend iBrain for the 12-month 2024-25 school year as well as funding for the costs of the student's special education transportation services pursuant to the parents' contract with Sisters Travel (id. at p. 11).  Additionally, the parents requested an order to compel the district to reevaluate the student and provide him with assistive technology services and devices and an order to direct the district to fund independent educational evaluations (id.).

The district filed a response to the due process complaint notice dated July 10, 2024 (Due Process Response).

On July 11, 2024, the district sent the parent a letter stating that the district's office of pupil transportation was prepared to transport the student to and from iBrain every school day in accordance with the student's June 2024 IEP at no cost to the parent, starting on July 1, 2024 (Dist. Pendency Ex. 1).

B. Impartial Hearing Officer Decision

After a prehearing conference on August 12, 2024, a pendency hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on August 21, 2024 (Tr. pp. 1-51).  In an interim decision addressing pendency, dated December 12, 2024, the IHO found that the student's pendency placement arose out of Application of a Student with a Disability, Appeal No. 24-175, which awarded the parent full reimbursement for the student's tuition costs at iBrain and transportation costs from Sisters Travel for the 2023-24 school year (Interim IHO Decision at pp. 3-4).  The IHO ordered the district to provide the student with transportation services of the same type found appropriate by the SRO, in Application of a Student with a Disability, Appeal No. 24-175, during the pendency period; reimburse and directly fund the cost of transportation for the school days from July 2, 2024 through July 10, 2024, on a pro rata basis, based on the 2023-24 rates; and reimburse and directly fund the student's pendency placement at iBrain on a pro rata basis, based on the 2023-24 rates (id. at p. 5).[5]  The pendency decision was appealed by both parties and an SRO issued a decision, which determined the IHO correctly determined that the student was entitled to pendency based on Application of a Student with a Disability, Appeal No. 24-175; however, the decision was modified to reverse those portions of the IHO's decision that ordered the district to provide the student's transportation services during the pendency period and directed the district to fund iBrain and transportation services on a pro rata basis at the rates paid during prior school years (see Application of a Student with a Disability, Appeal No. 24-624).

On July 29, 2024, the district filed a motion to dismiss the request for review based on the parent's failure to participate in the resolution meeting (see Dist. Mot. to Dismiss Ex. 5).  On August 12, 2024, the parent filed a response to the district's motion to dismiss (Parent Response to Mot. to Dismiss).  The IHO did not issue a decision on the motion due to a federal district court order, dated August 8, 2024, which denied the parent's request for a temporary restraining order or preliminary injunction directing the district to convene a resolution meeting and ordered the parties to proceed to a due process hearing and raise the arguments they would have raised in the resolution meetings (IHO Ex. I).

On September 9, 2024, the parties then proceeded to a hearing on the merits, which concluded on October 3, 2024, after three days of proceedings (Tr. pp. 66-280).[6]

In a decision dated January 6, 2025, the IHO determined that the district offered the student a FAPE (see IHO Decision).  More specifically, the IHO found that: the district held a timely meeting and the CSE was properly composed; the IEP annual goals were based on the student's needs and included the required components; the lack of a music therapy recommendation did not deny the student a FAPE; the recommended assistive technology device on the IEP was sufficient; the CSE was reasonable to not recommend air conditioning as a part of the student's special transportation services; the IEP, taken as a whole, provided the student with an opportunity to make meaningful progress in light of his circumstances; and the assigned school location could have implemented the student's IEP and any claims to the contrary were speculative. (id.).  Accordingly, the IHO denied the parent's requested relief (IHO Decision at p. 18).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in in finding that the district offered the student a FAPE for the 2024-25 school year.  As relief, the parents request an order finding the district denied the student a FAPE during the 2024-25 extended school year, that iBrain was an appropriate unilateral placement for the student; and that equitable considerations support directing the district to directly pay iBrain the full cost of the student's tuition for the 2024-25 school year as well as special transportation services in accordance with the iBrain enrollment contract and the Sisters Travel transportation agreement. The district filed an answer denying the material allegations contained in the request for review, raising defenses to the parent's claims, and seeking affirmance of IHO's decision.  Finally, the parent filed a reply to the district's answer.[7]

Based on the allegations raised by the parent in the request for review and the district's answer thereto, the following issues presented on appeal must be resolved in order to render a decision in this matter:

1. Whether the IHO erred in determining that the evaluative information considered by the June 2024 CSE was sufficient;

2. Whether the June 2024 CSE failed to recommended appropriate management needs;

3. Whether the IHO erred in determining the June 2024 CSE recommended appropriate assistive technology devices or supplementary aids and services;

4. Whether the IHO erred by finding music therapy was not a necessary service to offer the student a FAPE;

5. Whether the IHO erred in determining the June 2024 CSE's recommended special transportation accommodations were appropriate; and

6. Whether the IHO erred in determining that the parent was sufficient notified of the assigned public school and whether the assigned school was capable of implementing the student's IEP.

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]).[8]

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. June 2024 CSE Process

1. Sufficiency of Evaluative Information

The IHO determined that the June 2024 CSE had extensive documentation and verbal input that the CSE members used to formulate the student's IEP which provided the CSE with more than enough current information to assess accurately the student's skill levels (IHO Decision at p. 14). The IHO also noted that the district completed an updated social history report prior to the CSE meeting (id.).

The parent argues that the IHO "disregarded the fact that the CSE failed to conduct any evaluations of the student which would have assisted in the IEP-development process" (Req. for Rev. ¶27) .  The parent also argues the district improperly placed the responsibility on her to provide updated evaluative information regarding the student's needs. The district argues that per the testimony of the district representative, who participated in the June 2024 CSE meeting as both the special education teacher and the district representative (district representative), the CSE relied on sufficient information regarding the student's needs and deficiencies.

Regulations require that a district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]).  A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).  Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see S.F., 2011 WL 5419847 at *12 [S.D.N.Y. Nov. 9, 2011]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).  In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]).  A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]).  An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

In developing the student's June 5, 2024 IEP, review of the IEP itself shows that the CSE considered school progress reports from iBrain and an iBrain education plan received by the district on April 9, 2024, as well as the student's prior IEP, and an April 7, 2024 social history update (Dist. Ex. 1 at p. 1; see Dist. Exs. 4-6).  In addition, the district's prior written notice indicated that the June 2024 CSE considered a January 31, 2023 classroom observation and a January 27, 2023 social history update (Dist. Ex. 2 at pp. 4-5; see Dist. Exs. 7, 9).  The district representative testified that the June 2024 CSE considered a January 31, classroom observation, an April 7, 2024 social history update, a March 28, 2024 iBrain education plan, iBrain quarterly progress reports dated October 6, 2023 and January 5, 2024, and a prior IEP for the student (Dist. Ex. 27 ¶ 9).[9]  Consistent with the notation that the CSE considered progress reports from iBrain and an iBrain education plan received by the district on April 9, 2024 and the district representative's testimony, the hearing record includes an iBrain quarterly progress report dated October 6, 2023, an iBrain quarterly progress report dated January 5, 2024, and an iBrain education plan dated March 28, 2024 (Dist. Exs. 4-6).  Additionally, the hearing record includes a social history update dated April 7, 2024 (Dist. Ex. 8).

Review of the iBrain education plan relied on by the CSE in developing the student's IEP shows that it included detailed information regarding the student's educational background, present levels of performance in areas of academics, social and emotional functioning, self-care skills, fine motor skills, physical development and gross motor skills, classroom participation, vocational skills, as well as the student's progress in academic and with related services including speech-language therapy, OT, PT, music therapy, and his use of assistive technology (Dist. Ex. 6 at pp. 1-32).  Additionally, review of the June 2024 IEP shows that the IEP included standardized assessment scores as were reported in the March 2024 iBrain education plan (compare Dist. Ex. 1 at pp. 1-4, with Dist. Ex. 6 at pp. 10-11, 14-16, 18).  The IEP also reported the student's present levels of performance, which appear to be consistent with the description of the student contained within the iBrain education plan (compare Dist. Ex. 1 at pp. 4-17, with Dist. Ex. 6).

In this instance, the parent has not asserted that the information considered by the June 2024 CSE was insufficient, or that the June 2024 failed to accurately describe the student's needs. Instead, the parent, generally, objects to the June 2024 CSE's reliance on the information produced by iBrain asserting that the district did not conduct its own evaluation of the student and instead placed the responsibility on the parent to generate sufficient information to address the student's needs.  As noted above, the district is required to conduct a reevaluation of a student at least once every three years, unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]).  However, unlike an initial evaluation, regulations do not specific assessments that must be conducted as part of a reevaluation (8 NYCRR 200.4[b][1], [4]).  Instead, a reevaluation must "be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education" (8 NYCRR 200.4[b][4]).

Accordingly, based on the above, there is no basis for departing from the IHO's finding that the CSE relied on sufficient evaluative information.  This is especially so, without an explanation as to how the student's present levels of performance as described in the June 2024 IEP may have been inadequate or inaccurate.

B. June 2024 IEP

Turning to the parent's objections to the June 2024 IEP, on appeal the parent raises allegations related to the sufficiency of the management needs and the recommendation for assistive technology, the lack of a recommendation for music therapy, and the appropriateness of the recommendations for transportation services.[10]  As the parent has not appealed from the IHO's determinations that the CSE was properly composed and the district made sufficient attempts to include the parent's participation in the CSE meeting, that the annual goals included in the June 2024 IEP were sufficient and appropriate, and that the parent abandoned her request for an independent educational evaluation (IEE), those determinations have 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]).  Additionally, any claims that were raised in the due process complaint notice, and which have not been specifically raised on appeal are deemed abandoned (8 NYCRR 279.8[c][4]).

As noted above, the June 2024 CSE recommended the student attend an 8:1+1 special class, as well as an adapted physical education class, at a State-approved nonpublic school on a 12-month basis and that he receive related services and the support of 1:1 health paraprofessional services (id. at pp. 32-34).  In the interim, pending availability of a State-approved nonpublic school, the June 2024 CSE recommended the student attend an 8:1+1 special class placement, as well as an adapted physical education class, at a district specialized school (id.).  As there is no indication that the district located a nonpublic school for the student, the appropriateness of the recommended program is assessed based on the recommended interim program.

The district representative opined the June 2024 IEP was appropriate for the student because it reflected the student's then-current present levels of performance, including his social emotional, behavioral, and academic needs, along with clear, specific measurable annual goals that were designed to meet his stated needs (Dist. Ex. 27).  The district representative explained that an 8:1+1 special class in a district specialized school was recommended based on the progress reports and iBrain IEP provided to the CSE prior to the IEP meeting (id. ¶¶ 5, 12).  She stated "[c]onsidering that the student was making progress in an 8:1+1 setting according to the progress reports, an 8:1+1 would be an appropriate program for [him] (id. ¶ 12).

The district representative indicated a State-approved nonpublic school program was also deemed appropriate as the student required an environment that was more restrictive to support his academic, social/emotional and medical needs Dist. Ex. 27 ¶ 13).  The district representative reported the frequency and duration of the related services were based on the services the student was receiving at iBrain and noted that according to the data from the progress reports, the frequency and duration of the related services were appropriate for the student as he was making progress (id.).  Next, the district representative testified the student was receiving aquatic therapy and/or yoga at iBrain, and the district's team took that into consideration and mandated adaptive physical education on the June 2024 IEP (id.).[11]

With regard to assistive technology, the district representative indicated that an assistive technology device was recommended through the completion of an assistive technology evaluation (Dist. Ex. 27 ¶ 17).  The district representative noted that, as reported  by iBrain, at the time of the CSE meeting the student was using a dynamic display SGD to assist with his communication needs (id.).

The district representative indicated the student required several types of medication to function during the school day and he was prone to seizures (Dist. Ex. 27 ¶ 18).[12]  She reported that a health paraprofessional was recommended for the student's health, ambulation, feeding, and safety (id.).

Finally, the district representative stated that based on the data surveyed and the participants' feedback at the June 2024 CSE meeting, the district's team made their considerations and offered an 8:1+1 special class in state-approved nonpublic school and an interim district specialized school program pending the availability of the 8:1+1 special class in a State-approved nonpublic school (Dist. Ex. 27 ¶ 24).  The district representative highlighted that the recommended program encompassed adaptive physical education, speech-language therapy, occupational therapy, physical therapy, professional services, and an assistive technology device (id.).  She opined the goals and management needs contained within the June 2024 IEP were appropriate and individualized to enable the student to meet his goals and make measurable progress during the 2024-25 school year (id.).

1. Management Needs

The parent argues that the June 2024 CSE failed to factor the student's intensive management needs into the June 2024 IEP.[13]

Management needs are defined by State regulations as "the nature of and degree to which environmental modifications and human material resources are required to enable the student to benefit from instruction" and shall be determined in accordance with the factors identified in the areas of academic or educational achievement and learning characteristics, social and physical development (8 NYCRR 200.1[ww][3][i][d]).

The parent's argument that the June 2024 CSE failed to factor the student's intensive management needs into the June 2024 IEP is not supported by the evidence in the hearing record.  Initially, it should be noted that the parent does not identify what "intensive management needs" were not addressed by the June 2024 IEP (see Req. for Rev. ¶ 28).

According to the management needs section of the June 2024 IEP, with respect to academics, the student needed the following human resources to address his management needs: a 1:1 paraprofessional to provide aided language stimulation, additional processing time, and repetition of verbal clues with physical clues to increase comprehension (Dist. Ex. 1 at p. 17).  In addition, the student required environmental modifications of 1:1 instruction using a direct instructional model, a highly structured classroom or corner room with less stimulus from visual and auditory distractions, multisensory supports, sensory breaks during instruction, and repeated directions (id.).  Further, the student required the following material resources: an iPad-based communications tool with Language Acquisitions through Motor Planning (LAMP), a token board reward system, access to augmentative and alternative communication (AAC), incorporation of the of the student's interests into his school day in order to maximize his interest and make skills relevant to his future, and an instructional laptop with resources and software related to literacy and math skills (id.).  The CSE recommended similar resources and modifications to aid in the student's social development, as well as additional supports of stimulation to increase arousal, a quiet and non-distracting environment for successful comprehension and communication, noise reduction, a high-tech speech generating device, overall support of verbal, visual, and tactile cues and modified materials with dynamic display-communication software and a variety of voice output single switches (id.).  The June 2024 CSE recommended additional resources and modifications to assist in the student's physical development including: a 1:1 paraprofessional for all transfers and constant supervision for all tasks; one-person assisted transfers in and out of his wheelchair; frequent verbal cues, social engagement, frequent redirections and motivation to remain engaged and interested in activities; sensory integration activities to improve his arousal status and engagement in therapeutic activities; a variety of equipment to meet his physical development needs, such as, an adapted seating device in the classroom with a pelvis belt for safety due to the student's poor awareness of environmental hazards and decreased attention span and a slant-board or incline for writing activities;  PT sessions in a room with less distractions; and intermittent rest breaks to sustain energy and attention (id.).

The June 2024 IEP indicated that due to the student's significant impairments he required a significant level of curriculum individualization and that, given appropriate supports and modifications as outlined in the IEP, the student would be able to learn and excel (Dist. Ex. 1 at p. 18).  The June 2024 IEP also indicated that the student was not able to participate in a general education classroom due to the severity of his impairments, which made such an environment physically dangerous to him, socially and cognitively overwhelming, and academically inappropriate (id.).

Generally, review of the June 2024 IEP indicates that the student's management needs were consistent with his present levels of performance and academic functioning (Dist. Ex. 1 at pp. 1-17).  Additionally, the CSE adopted many of the management strategies recommended in the iBrain education plan as well as those recommendations by the student's then-current iBrain teacher and related service providers (compare Parent Ex. C, with Dist. Ex. 1).  Moreover, the human and material resources and environmental modifications recommended by the CSE aligned with the student's needs as reported in the present levels of performance and largely addressed the parent's reported concerns (see Dist. Ex. 1 at pp. 1-17).

2. Assistive Technology

The IHO determined that the June IEP recommended assistive technology devices and services and the CSE developed goals that targeted the student's consistent use of a communication device to express himself for academic tasks (IHO Decision at p. 17).

The parent argues that the IHO erred in finding that the June 2024 IEP included assistive technology services and annual goals focused on the student's use of a communication device.  According to the parent, the recommended dynamic display speech generating device was inadequate for the student, and, in contrast, the March 2024 iBrain report provided a range of assistive technology devices which were necessary for the student's success and development.

One of the special factors that a CSE must consider is whether the student "requires assistive technology devices and services, including whether the use of school-purchased assistive technology devices is required to be used in the student's home or in other settings in order for the student to receive a [FAPE]" (8 NYCRR 200.4[d][3][v]; see 20 U.S.C. § 1414[d][3][B][v]; 34 CFR 300.324[a][2][v]; see also Educ. Law § 4401[2][a]).  Federal and State regulations describe an assistive technology device as "any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability" and assistive technology service as "any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device" (34 CFR 300.5, 300.6; 8 NYCRR 200.1[e]; [f]).  Furthermore, State regulations consider assistive technology services to be a related service defined as a "developmental, corrective, and other supportive services as are required to assist a student with a disability" (8 NYCRR 200.1[qq]).[14]   The failure to recommend specific assistive technology devices and services rises to the level of a denial of a FAPE only if such devices and services are required for the student to access his educational program (see, e.g., Application of the Bd. of Educ., Appeal No. 13-214; Application of a Student with a Disability, Appeal No. 11-121).

As described above, within the management needs section of the June 2024 IEP, the CSE recommended that the student have access to AAC, specifically referencing access to a dynamic display speech generating communication tool, and other means of communication (Dist. Ex. 1 at p. 17).  The June 2024 CSE also recommended that the student have access to an instructional laptop and software related to literacy and math skills (id.).  The CSE further recommended the use of a variety of single switch voice-output devices with the student (id.). Additionally, within the special factors section, the June 2024 IEP indicated that the student needed a particular device or service to address his communication needs, and that the student needed an assistive technology device or service (id. at p. 18).  Under recommended special education programs and services, the June 2024 IEP included recommendations for a dynamic display speech generating device for school and home, along with one 60-minute session per month of assistive technology services (id. at p. 33).  The district representative testified via affidavit that the recommended assistive technology device was based on a district evaluation and the March 2024 iBrain report which indicated that, at the time, the student was using a dynamic display speech generating device to assist him with communication needs (Dist. Ex. 27 ¶ 17; see Parent Ex. C at p. 41).

The use of assistive technology was also incorporated into the student's annual goals on the June 2024 IEP (Dist. Ex. 1 at pp. 19-).  With regard to academics, the IEP included a literacy goal that targeted the student's ability to write a three word sentence using his communication device or word cards; a math goal that targeted the student's ability to tell time using his communication devices or picture number cards; and a social skills goal that targeted the student's ability to demonstrate awareness of good and bad behavior using his communication device, gestures, and verbal expression (id. at pp. 19-21).  The June 2024 IEP also included receptive, expressive, and pragmatic language goals that reflected the use of both low-tech and high-tech AAC devices and an assistive technology goal that targeted the student's ability to "consistently access and operate a high-tech speech generating device" to reduce his workload, engage in conversations, and fully and functionally participate in classroom and therapeutic activities (id. at p. 22).

The parent contends that the iBrain education plan provided a more thorough and appropriate recommendation of various devices and supports that were necessary for the student's success and development.  More specifically, the parent indicates that the iBrain education plan provided for a wide range of assistive technology devices for the student including an AAC device, an AAC wheelchair mount, a computer, a computer switch, interface, adaptive seating (a Rifton chair for toileting) and software such as LAMP and Words for Life or Proloquo2Go.  As noted above, the June 2024 IEP identified the student's assistive technology needs and recommended that the student be provided with one 60-minute session per month of assistive technology services and a dynamic display speech generating device for use at home and school (Dist. Ex. 1 at p. 33).  As correctly indicated by the IHO in her decision, the parent has not cited any regulation or law that requires a particular brand or model of speech generating device to be identified in a student's IEP (IHO Decision at p. 17 n. 27).

According to the June 2024 IEP, in order to assess the student's ability to use assistive technology for communication, as well as his need to assistive technology in his customary environment, in March 2024 the student was evaluated using the Dynamic AAC Goals Grid-2 (DAGG-2 and Wisconsin Assistive Technology Initiative (WATI) guidelines (Dist. Ex. 1 at pp. 1-2).  The IEP stated that based on information generated by the evaluations, the most appropriate form of AAC device for the student was a high-tech, dynamic display device with communication software, for access through finger isolation and direct selection (id.).  The IEP indicated that Proloquo2go communication software would be further explored as a new software option for the student, as he had been increasingly resistant to utilizing his current device using LAMP Words for Life (id. at p. 3).  Overall, while the iBrain education plan may have been more specific in its recommendations for assistive technology devices and services, the IHO did not error in finding that the assistive technology devices and services recommended in the June 2024 IEP were sufficient to have provided the student with a FAPE.

3. Music Therapy

The IHO determined that the March 2024 iBrain report did not indicate that music therapy was objectively necessary for the student to receive a FAPE, but rather provided anecdotal support for the service (IHO Decision at pp. 16-17).  The IHO also determined that there was no information in the hearing record that music therapy was essential for the student's skill development as the same goals of vocalization, gait training/walking, upper body motor activities, and following instructions were targeted in PT and OT (id. at p. 17).  Accordingly, the IHO found that music therapy was not a dispositive element needed to find the student's educational program appropriate (id.).

The parent contends the student required music therapy in order to receive a FAPE.  The parent argues that music therapy was crucial for the student's skill development, communication development, and cognitive development.  The parent also argues there was no evidence that goals addressed by iBrain in music therapy could have been addressed in other related services.

Turning to the district's recommendations, an IEP must include a statement of the related services recommended for a student based on such student's specific needs (8 NYCRR 200.6[e]; see 20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]).  "Related services" is defined by the IDEA as "such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education" and includes psychological services as well as "recreation, including therapeutic recreation" (20 U.S.C. § 1401[26][A] [emphasis added]; see 34 CFR 300.34[a]; 8 NYCRR 200.1[qq]).

According to the March 2024 iBrain education plan, the student was receiving three 60-minute sessions per week of music therapy and one 60-minute session per week of group music therapy, which were conducted by a board-certified music therapist (Dist. Ex. 6 at p. 11).  The June 2024 IEP noted that the student enjoyed music, among other things (Dist. Ex. 1 at p. 8).  According to the IEP, the student was extremely responsive and motivated by music and his overall presentation changed in the presence of live music, to which he would sing, attend, and play instruments (id. at p. 10).  The IEP noted that listening to music was a preferred task of the student and that during OT, the student was able to regulate himself when told that the music would be turned off while he participated in a presented activity (id. at p. 14).  The IEP also noted that the student was easily motivated by music and social interactions during his PT sessions (id. at p. 15).  The IEP further noted that the student demonstrated significant progress with PT and music therapy co-treatments as evidenced by his stepping to the rhythm of the music, increased motivation and engagement during a session, and increased attention to activities and therapist directions (id. at p. 16).  The June 2024 IEP indicated that the parent's advocate and school team expressed concern about the lack of music therapy as a mandated service on the June 2024 IEP and asserted that the student would not make progress toward the identified music therapy goals without the services being provided by a certified music therapist (Dist. Ex. 1 at p. 40).    iBrain personnel present at the CSE meeting recommended a continuation of school-based music therapy (id. at p. 39).

Although the June 2024 CSE did not recommend music therapy as a related service for the student, committee members discussed using music as an instructional tool to support the student's engagement (Dist. Ex. 1 at pp. 39-40).  The March 2024 iBrain report indicated music therapy was to be provided to address the student's communication, fine and gross-motor functioning, and attention, and to help him achieve goals faster and more efficiently. (Parent Ex. C at pp. 11, 49-50).  According to the district representative, the CSE determined that music could be incorporated as an instructional tool throughout the student's curriculum to enhance his communication skills, vocal skills, and participation skills (Tr. pp. 126-27).  The district representative testified that, based on the documents before the CSE and CSE discussion, music could be incorporated as "a special designed instruction" (Tr. pp. 127, 162).  On cross-examination, the district representative testified that she was not aware if the NYSED considered music therapy an approved related service, but that did not dissuade her from giving the student what he needed (Tr. p. 153).  She emphasized that the CSE could discuss and consider any service based on the student's needs, regardless of State approval (Tr. pp. 153-54).  She further testified on redirect that the student was receiving other related services such as speech-language therapy and OT, which addressed communication skills and participation, areas that music therapy addressed (Tr. p. 174).  In support of this contention, review of the June 2024 IEP shows that it included three speech goals that targeted the student's communication skills; two OT goals and one PT goal that targeted the student's participation and attention skills; and an OT goal and two PT goals that targeted the student's motor skills (Dist. Ex. 1 at pp. 23-28).

Based on the foregoing, evidence in the hearing record shows that music therapy at iBrain offered a different approach for addressing the student's needs, and that the June 2024 CSE identified the student's needs and addressed them through other related services and annual goals, and as such, the lack of a recommendation for music therapy as a related service by the June 2024 CSE did not result in a denial of a FAPE in this instance (Cruz v. Banks, 2025 WL 1108101, at *3 [2d Cir. Apr. 15, 2025] [holding that a recommendation for music therapy was not necessary to offer the student a FAPE, when the goals of music therapy were sufficiently accomplished through other services recommended in the IEP]).  In addition, the district was not required to replicate the exact same services that the parents preferred for the student in the private school.  Therefore, there is insufficient basis to disturb the IHO's finding that the student did not require music therapy to receive a FAPE (see N.K., 961 F. Supp. 2d at 592-93 [finding that, although the evidence may have supported that music therapy was beneficial for the student, it did not support the conclusion that the student could not receive a FAPE without it]).

4. Transportation Services

The parent argues the recommended special transportation accommodations in the June 2024 IEP were not appropriate because they did not include an air-conditioned vehicle or limited travel time and that the lack of such recommendations jeopardized the health and safety of the student.  The parent also argues that the IHO incorrectly found that the CSE was unable to recommend such transportation accommodations due to the lack of transportation accommodation forms.

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]).  In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).  Specialized forms of transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 891, 894 [1984]; Dist. of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]).  If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]).  The transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

For school aged children, according to State guidance, the CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and the IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate," which may include special seating, vehicle and/or equipment needs, adult supervision, type of transportation, and other accommodations ("Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at https://www.nysed.gov/sites/default/files/programs/special-education/special-transportation-for-students-with-disabilities_0.pdf).  Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance (see Donald B., 117 F.3d at 1375; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]).

The June 2024 IEP included a recommendation for special transportation for the student including supervision by a 1:1 paraprofessional, a lift bus, vehicle equipment to support a regular sixed wheelchair, and door to door transportation (Dist. Ex. 1 at p. 37).  The district representative testified that air conditioning was not recommended because neither the parent advocate nor iBrain staff requested it at the June 2024 CSE meeting, and it would need to be specifically requested (Tr. pp. 162-63, 173).  The district representative clarified that transportation forms were not needed for air conditioning and indicated that she could have placed air conditioning on the student's IEP if asked but that it was not raised as a concern at the CSE meeting (Tr. p. 163).  The district representative also testified that the CSE did not recommend limited travel time for the student because it did not receive the proper paperwork for consideration and the CSE "cannot place without considerations from the Transportation Accommodations Department" (Tr. p. 163). However, the June 2024 IEP did specifically note that the parent advocate who attended the meeting on the parent's behalf stated the student required limited travel time and air conditioning (Dist. Ex. 1 at p. 40).

Though it is not clear whether the parents submitted the medical transportation accommodations forms to the district prior to the CSE meeting, requiring parents to provide the district with specific paperwork which the district would examine at another time through a separate "Office of School Health," and then, perhaps, decide if the student's IEP would be amended to include transportation accommodations of air conditioning and limited travel time is a scenario that bears considerable similarity to litigation that was brought against the district which complained of systemic "policies that never required [the Office of School Health] or [Office of Pupil Transportation]—agencies critical to providing the services at issue in this action—to appear for IEP meetings. . . . Accordingly, Plaintiffs were required to contact OSH and OPT separately after the IEP meeting.  This policy created a disjointed bureaucracy in which OSH and OPT acted in isolation without coordinating—much less knowing—the services each was required to provide" (J.L. on behalf of J.P. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 464-65 [S.D.N.Y. 2018]).

This is not the process called for under IDEA because it is the CSE that is required to make the determination of which services should be placed on a student's IEP, and it is the district's responsibility to ensure that the CSE has sufficient information about the student's needs and that individuals who can make appropriate decisions are part of the CSE process.  Placing the onus on the parent, rather than the district, to obtain the required medical forms is problematic since the district may not delegate its responsibilities to the student under IDEA to the parents (see 8 NYCRR 200.4[b][3]).  The district members of the CSE were the individuals responsible to determine whether the student needed transportation with air conditioning and limited travel time in order to receive a FAPE.  A district is authorized to conduct necessary medical assessments in order to provide appropriate special education programming to a student with a disability (see Shelby S v. Conroe Indep. Sch. Dist., 454 F.3d 450, 454 [5th Cir. 2006]).[15]

However, the district's failure to obtain documentation regarding transportation accommodations prior to the June 2024 CSE meeting constitutes a procedural violation.  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).

In this instance, the parent asserts that an air-conditioned vehicle and limited travel time were "safety-related" and that the failure to recommend them "would jeopardize the health and safety of the student"; however, there is no further explanation as to how such services were connected to the student's safety or how a lack of recommendation for those services would have impacted on the student's health or safety (Req. for Rev. at ¶¶18-22).  Review of the evidence in the hearing record does not support the parent's contention.  The student was diagnosed with Dandy Walker Syndrome, mixed sleep apnea, and developmental delays (Parent Ex. C at p. 1; Dist. Ex. 1 at p. 5).  The iBrain March 2024 and June 2024 education plans both indicate under transportation recommendations that the student required a paraprofessional, and vehicle and equipment needs described as an ambulette, air-conditioning, a lift-bus or wheel chair ramp, and limited travel time (Parent Ex. C at p. 56; Dist. Ex. 6 at p. 61).  However, neither document identified the reasoning behind these recommendations except for notations that the student was transported from school to home in his wheelchair and that he required a paraprofessional to follow him for fall precautions (Parent Ex. C at pp. 8, 24, 53; Dist. Ex. 6 at pp. 7, 25, 58).  Additionally, according to a request for medical transportation accommodations form, provided by the district and filled out by the student's treating physician on May 16, 2024, the student required air conditioning and flexible pickup/drop-off times and locations and his transportation "should be limited to no more that [60/90] minutes each way"(Dist. Ex. 31 at p. 15).  However, in identifying the student's limitations and how those limitations affect the student's ability to take transportation there is no indication that the recommendations for air conditioning and limited travel time were related to the student's health or safety, nor was there an explanation as to the reasoning behind those recommendations (id.).  In fact, other than listing those services, the student's doctor did not elaborate further as to why the identified accommodations were needed to ensure the student's health and safety (id.).

The district argues that an air-conditioned bus and limited travel time was not recommended because at the time of the June 2024 CSE, there was no information that the recommended transportation accommodations would be inappropriate.  A review of the hearing record supports the district's argument as it shows that nothing before the June 2024 CSE indicated that a lack of air conditioning or a lack of a limited travel time would have caused a safety concern for the student.  The June 2024 IEP noted that the student did not have a history of seizures (Dist. Ex. 1 at p. 15).  Further, the CSE recommended that the student be provided with adult supervision during transportation in the form of a 1:1 paraprofessional (Dist. Ex. 1 at p. 37).  The recommendation for 1:1 paraprofessional services separates this matter from the prior hearing involving the 2023-24 school year in which it was determined that a lack of paraprofessional services during transportation resulted in a denial of a FAPE for the 2023-24 school year (see Application of a Student with a Disability, Appeal No. 24-175).  It is worth noting that in that matter, the IEP for the 2023-24 school year specifically noted that the student required constant supervision throughout all activities due to a lack of safety awareness and district staff conceded that it would be unsafe for the student to travel without the support of a paraprofessional (id. at p. 13).

Based on the above, although the district's continued reliance on a system that appears to separate the decision making process for certain accommodations away from the CSE is not appropriate, the hearing record as a whole does not support departing from the IHO's determination that the special transportation recommendations, including the support of 1:1 paraprofessional services, were sufficient to offer the student a FAPE without air conditioning and limited travel time.

C. Assigned Public School Site

1. School Location Letter

The parent argues that IHO failed to consider that the district issued a prior written notice and school location letter the day before the end of the 2023-24 school year which denied her the right to properly evaluate the appropriateness of the June 2024 IEP and schedule a school tour to evaluate the recommended program for the student. The district argues that the school location letter was sent a week prior to the beginning of the extended school year and thus was timely.

State and federal regulations require that a district provide parents of a student with a disability with prior written notice "a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a [FAPE] to the student" (34 CFR 300.503[a]; 8 NYCRR 200.1[oo]; 200.5[a][1).  Pursuant to State and federal regulation prior written notice must include a description of the action proposed or refused by the district; an explanation of why the district proposed or refused the action; a description of the other options that the CSE considered and the reasons why those options were rejected; a description of each evaluation procedure, assessment, record, or report the CSE used as a basis for the proposed or refused action; and a description of the other factors relevant to the CSE's proposal or refusal (34 CFR 300.503[b]; 8 NYCRR 200.5[a][3]).

Although not explicitly stated in federal or State regulation, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [noting that "a parent must necessarily receive some form of notice of the school placement by the start of the school year"]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [finding that a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]).  While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented.

Here, the hearing record includes a prior written notice and school location letter, both dated June 25, 2024 and both indicate they were mailed to the parent at her address (see Dist. Exs. 2-3).  The parent asserted she did not receive the prior written notice or school location letter as of the date of the due process complaint notice (Parent Ex. A). However, the hearing record includes an email, dated June 25, 2024, sent from the district to the parent, with the school location letter attached (see Dist. Ex. 11).  Additionally, the parent testified that she received the school location letter (Tr. p. 273).

Regarding the timeliness of the prior written notice and school location letter, in this instance it appears the June 25, 2024 prior written notice and school location letter were sent in response to the parent's June 14, 2024 letter in which she indicated she had not received a school location letter and expressed she was rejecting the recommended placement at "the most recent" CSE meeting and was rejecting the school location if it was the same as the previously rejected assigned public school for the prior school year (Parent Ex. A-A).  Based on evidence filed in the prior State-level administrative review proceedings, the proposed school location in the June 25, 2024 letter was not the same school location proposed in the prior school location letter dated June 21, 2023 for the 2023-24 school year (see Application of a Student with a Disability, Appeal No. 24-175 Dist. Ex. 3).[16]  Accordingly, it appears the district was attempting to resolve the parent's concerns regarding the school location (see Dist. Ex. 11).  Given the timing of the parent's rejection of the June 2024 IEP and her concerns regarding a recent proposed school location in a letter dated June 14, 2024, the district's attempt to resolve the parent's concerns with prior written notice and a school location letter dated June 25, 2024, and the parents' filing of the due process complaint notice on July 2, 2024, it does not appear that the assignment of the student to a school prior to the start of the 2024-25 school year denied the parents the opportunity to obtain information about the school.  Any other finding would foil the purposes of the ten-business day notice requirement, which is to give the district an opportunity to determine if it can provide a suitable education to the student (see Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).

Regarding the parents' ability to tour an assigned public school site, the United States Department of Education's Office of Special Education Programs (OSEP) has opined that the IDEA does not provide a general entitlement to parents of students with disabilities or their professional representatives to observe proposed school placement options for their children (Letter to Mamas, 42 IDELR 10 [OSEP 2004]; see G.J. v. Muscogee County Sch. Dist., 668 F.3d 1258, 1267 [11th Cir. 2012] [noting that rather than forbidding or mandating access for parents, "the process contemplates cooperation between parents and school administrators"]; J.B. v. New York City Dep't of Educ., 242 F. Supp. 3d 186, 195 [E.D.N.Y. 2017] [noting that the IDEA does not afford parents a right to visit an assigned school placement before the recommendation is finalized]; J.C. v. New York City Dep't of Educ., 2015 WL 1499389, at *24 n.14 [S.D.N.Y. Mar. 31, 2015] [acknowledging that courts have rejected the argument that parents have a right under the IDEA to visit assigned schools and listing authority], aff'd, 643 Fed. App'x 31 [2d Cir. Mar. 16, 2016]; E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at *11 [S.D.N.Y. Sept. 29, 2012] [finding that a district has no obligation to allow a parent to visit an assigned school or proposed classroom before the recommendation is finalized or prior to the school year]; S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 [S.D.N.Y. Nov. 9, 2011] [same]).[17]

On the other hand, there is district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *14-*16 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]).

Based on the above, while there is no relevant legal authority granting a general entitlement for a parent to visit an assigned public school, there is some authority that a district's failure to accommodate parents' inquiries concerning an assigned school could, under certain circumstances, constitute a procedural violation that could contribute to or even rise to the level of a FAPE denial.   In this instance, there is no evidence that the parent attempted to obtain information about the assigned school after the June 25, 2024 school location letter was sent to the parent.  Additionally, as indicated above, the district was attempting to accommodate the parent's concerns regarding the assigned school location by recommending a school that was not previously recommended for the student.

2. Extended School Day Services

Related to the assigned public school site, the parent raises an allegation regarding the length of the student's school day.  While the parent asserts that the IHO neglected to address the CSE's failure to recommend an extended school day, which could be read as an attack on the recommendations in the IEP, further review of the parent's claim shows that her objection to the lack of an extended school day is directly tied to her assertion that the proposed school would be factually unable to implement the June 2024 IEP.  According to the parent, the recommended hours of academic instruction, adapted physical education, and related services would not fit into "a regular school day." The parent contends this claim is not speculative and that district staff could not testify as to how the student's schedule would have accommodated all of the recommended services.

Regardless of whether the parent's claim is read as a substantive attack on the June 2024 IEP for not recommending an extended school day or as an allegation that the assigned public school site could not implement the IEP, the thrust of this issue is whether all of the recommended services could have fit within a standard school day (see Rivas v. Banks, 2023 WL 8188069, at *8 [S.D.N.Y. Nov. 27, 2023] [initially reviewing whether the student required extended school day services to receive a FAPE including whether the claim related to the "efficacy of push-in services"], reconsideration denied, 2024 WL 292276 [S.D.N.Y. Jan. 25, 2024], and aff'd sub nom., Rivas v. Ramos, 2024 WL 5244849 [2d Cir. Dec. 30, 2024]).

The June 2024 CSE recommended, as services provide to the student directly, that the student attend an 8:1+1 special class for 35 periods, receive five periods per week of adapted physical education to be provided in an "[o]ther [f]acility [m]odified [g]ymnasium"per week, and receive four 60-minute sessions per week of individual OT, five 60-minute sessions per week of individual PT, four 60-minute sessions per week of individual speech-language therapy, one 60-minute session per week of group speech-language therapy, and one 60-minute session per month of individual assistive technology services (Dist. Ex. 1 at pp. 32-33).  With respect to the student's related services, the IEP noted that they could be provided in a separate location at the provider's discretion (id.).  The IEP further noted that the student required both push-in and pull-out sessions for OT "to allow for the opportunity to work on skill progression in controlled environments, as well as generalization in the academic environment"; both push-in and pull-out sessions for PT; and speech-language therapy to be assessed informally and formally in push-in and pull-out environments (id. at pp. 14, 16, 23).

A review of the allegations reveals that the parents do not argue that the June 2024 IEP included service and program recommendations at an inadequate frequency or duration.  Instead, the parents claim the services recommended in the IEP could not be implemented during a standard school day.  However, according to the June 2024 IEP, the student's related service providers had flexibility in where the student's related services would be provided such as in a separate location, if not provided in the student's special education classroom (Dist. Ex. 1 at p. 33).  On appeal, the parents do not appeal that the IEP was deficient for recommending the services be delivered in a flexible manner.

Based on the above, there was nothing in the June 2024 IEP that prevented the student's related services providers could have delivered the student's related services in the student's 8:1+1 special class.  As a result, even if most if not all of the student's related services would have had to have been delivered as a push-in service, the hearing record does not indicate that the district was factually capable of implementing the student's recommended program, as written, within the a regular school day.[18]  Although I can sympathize with the parent's belief that a longer school day might yield greater educational achievements for the student, that does not mean that the slightly more modest approach used by the district was deficient.  Instead, the student was likely to make progress under the June 2024 IEP as proposed by the district, which offered a substantial array of services that were aligned with the student's needs and the district was not required to maximize the student's potential.

VII. Conclusion

Review of the hearing record supports the IHO's determination that the district offered the student a FAPE for the 2024-25 school year.

I have considered the parties' remaining contentions and find it is unnecessary to address

them in light of my determinations herein.

THE APPEAL IS DISMISSED.