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 determined that the educational program respondent's (the district's) Committee on Special Education (CSE) had recommended for her son for the 2024-25 school year was appropriate, the parent's placement of the student at The International Academy for the Brain (iBrain) was not appropriate, and equitable considerations would have supported a reduction in any relief.  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 been the subject of a prior administrative proceeding regarding the 2023-24 school year (Application of a Student with a Disability, Appeal No. 24-486). 

The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail.  Briefly, the student has received diagnoses of a specific syndrome, global developmental delays, epilepsy, and immunodeficiency, "microcephaly and severe neurologic impairment with dysphagia" (Parent Ex. D at p. 1). [1]  At the time of the proceedings, the student had been attending iBrain since the 2023-24 school year (Oct. 17, 2024 Tr. pp. 7-8; Parent Ex. J ¶ 11). [2]^,  [3] 

A medical accommodation request form was signed by one of the student's medical providers on June 22, 2023 (Parent Ex. D at pp. 1-3).  The nurse practitioner who completed the form noted that the student required "total care" for activities of daily living (ADLs), as well as temperature control and other supports during school and transportation (id.).  She also noted that the student required a 1:1 nurse while in school and on the bus, and that he was "severely developmentally delayed" and required "around the clock supervision" (id.).

By prior written notice dated May 2, 2024, written in English, the district informed the parent of its proposal to conduct a reevaluation of the student, as part of his mandated three-year reevaluation, to determine if the student continued to be eligible for special education services, and, if so, to determine the services that the student needed to meet his educational needs (Dist. Ex. 3).  The prior written notice indicated the student required a classroom observation (id. at p. 1).  A form granting consent for additional assessments was included with the prior written notice, for the parent to complete (id. at pp. 1-2, 4).  The notice further indicated that once the student's reevaluation was completed, the parent would be invited to attend a CSE meeting to discuss the reevaluation and the student's IEP (id. at p. 2).

A CSE convened on May 30, 2024 to develop an IEP for the student with an implementation date of June 10, 2024 (Parent Ex. C; Dist. Ex. 2). [4]  Finding the student eligible for special education as a student with a traumatic brain injury, the May 2024 CSE recommended a 12-month program consisting of a 12:1+(3:1) special class placement for 35 periods per week in a specialized school along with three periods per week of adapted physical education; together with 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, and three 60-minute sessions per week of individual vision education services, as well as full-time individual school nurse services; full-time individual paraprofessional services for health ambulation, safety, and feeding, and one 60-minute individual session of assistive technology services per week and assistive technology devices consisting of switches throughout the day for use in school and at home (Parent Ex. C at pp. 42-44).  In addition, the May 2024 CSE recommended one 60-minute session per month of group parent counseling and training (id. at p. 43).  The IEP noted that the student would receive the same program and services for the 12-month portion of the school year (id. at p. 44).  Further, the May 2024 CSE recommended special transportation accommodations and services for the student, including transportation from the closest safe curb location to school, individual nursing services, a lift bus, use of a wheelchair, limited travel time, a route with fewer students, and climate control (see id. at p. 48).

By prior written notice dated June 14, 2024, written in English, the district informed the parent of the recommendations made by the May 2024 CSE (Dist. Ex. 4 at pp. 1-5).  By letter dated June 14, 2024, written in English, the district notified the parent of the public school site to which the student had been assigned for the 2024-25 school year (id. at p. 6).  By letter dated June 14, 2024, written in English, the district notified the parent of the May 2024 CSE's recommendation for the student to participate in the New York State alternate assessment (id. at p. 7).    

In a letter, dated June 14, 2024, the parent, through her attorney, informed the district of her intention to remove the student from the public school placement because the district did not provide the student a free appropriate public education (FAPE) and unilaterally place the student at iBrain for the 2024-25 school year (Parent Ex. A-A).  The parent indicated that she had "no choice other than to re-enroll the [s]tudent in iBrain," which the parent asserted was the "last agreed upon placement" and she also requested that the district "maintain this status quo during the pending impartial hearing process and any appeals, through the 'stay put' provision" (id. at pp. 1, 2).

On June 19, 2024, the parent entered into an annual service agreement for Sisters Travel and Transportation Services, LLC (Sisters) to provide special transportation services for the student to travel to and from iBrain for the period of July 2, 2024 through June 27, 2025 (Parent Ex. A-E; see Oct. 17, 2024 Tr. pp. 9-11). [5]  Also on June 19, 2024, the parent entered into an annual service agreement with B&H Health Care Services, Inc. (B&H) for 1:1 private nursing services during the school day, as well as during transportation to and from school, for the period of July 2, 2024 through June 27, 2025 (see generally Parent Ex. A-F; see also Oct. 7, 2024 Tr. p. 13). [6]  

On June 25, 2024, the parent executed an enrollment contract with iBrain for the student's attendance for the 2024-25 extended school year, beginning on July 2, 2024 and ending on June 27, 2025 (Parent Ex. A-D; see Oct. 17, 2024 Tr. p. 8). [7]

A. Due Process Complaint Notice

In a due process complaint notice, dated July 2, 2024, the parent alleged that the district failed to offer or provide the student with a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A at pp. 6-9).  Initially, the parent indicated that the student was entitled to a determination that the student's placement during the pendency of the proceeding consisted of direct payment of tuition, related services, and transportation at iBrain (id. at p. 2).

With respect to the 2024-25 school year, the parent asserted that the district failed to evaluate the student and that the district did not have sufficient evaluative data to make recommendations for the student (Parent Ex. A at p. 8).  The parent further asserted that the CSE did not consider a nonpublic school placement for the student due to a lack of district evaluations (id.).  Turning to the May 2024 IEP, the parent contended that the district failed to recommend an appropriate class size for the student in the student's least restrictive environment (LRE), as he required and regulations dictated that he be placed in a special class of no more than six students as a student with highly intensive management needs, but the CSE ultimately recommended a 12:1+(3+1) special class placement (Parent Ex. A at p. 7).  The parent also contended that the district failed to recommend appropriate related services, as the May 2024 CSE did not recommend music therapy and failed to recommend a dedicated 1:1 nurse (instead opting to recommend school nurse services) (id. at pp. 7-8).  The parent also raised allegations related to the district's assigned public school, contending that the recommended school location was not adequately accessible and failed to include climate control throughout the building, which posed safety risks to the student; the school location would not have placed the student with other students with similar needs; and it was "mathematically impossible" for the student to be provided all of his related services without an extended school day (id. at p. 7).  Additionally, the parent contended that the district sent her a school location letter, which was not in her native language, "with less than five school days left in the 2023-24 school year, making it impossible [for her] to actual [sic] schedule a tour in person" (id. at pp. 6, 9).    The parent additionally contended that the unilateral placement at iBrain was appropriate, and that equitable considerations favored an award of full funding of tuition and related services at iBrain (id. at p. 9).

The parent requested the following relief: an interim order of pendency placing the student at iBrain for the 2024-25 school year; an order directing payment by the district to iBrain for the cost of the student's full tuition for the 2024-25 extended school year pursuant to the enrollment agreement between the parent and iBrain; funding of special education transportation services pursuant to an agreement between the parent and Sisters; funding of 1:1 nursing services pursuant to the agreement between the parent and "the nursing provider"; " an IEP meeting for [the student] to address his developmental needs"; an order compelling the district to reevaluate the student, and provide assistive technology services and devices, as well as an augmentative and alternative communication (AAC) device; and district funding of an independent educational evaluation (IEE) (Parent Ex. A at pp. 9-10).

B. Impartial Hearing and Decisions

An IHO was appointed by the Office of Administrative Trials and Hearings (OATH) on July 5, 2024 (IHO Decision at p. 2). 

By letter dated July 11, 2024, addressed to the parent with her attorney's office copied, the district acknowledged that the parent intended to unilaterally place the student at iBrain, and notified the parent that the Office of Pupil Transportation was prepared to transport the student to and from iBrain every school day, "as per the special education transportation recommendations contained in [the student's IEP] dated 6/4/2024" (Dist. Ex. 6). [8]  The letter indicated that transportation would be provided at no cost to the parent and that it was "available immediately, starting July 1, 2024" (id.).  The district "require[d] certain documentation from" iBrain in order to begin providing transportation, and asked the parent to contact the district (id.). 

The IHO issued an interim decision on July 17, 2024, which ordered that this matter not be consolidated with an earlier due process proceeding that also involved the student (IHO Decision Ex. I; July 17, 2024 Interim IHO Decision Exs. I-II). [9] 

The parent, through her attorney, submitted a motion in support of an interim order of pendency dated July 23, 2024 (Oct. 8, 2024 Interim IHO Decision Ex. II).  The district likewise submitted a brief and memorandum of law opposing the parent's pendency motion, dated August 13, 2024 (Oct. 8, 2024 Interim IHO Decision Ex. III). 

After a prehearing conference on August 7, 2024 (see Aug. 7, 2024 Tr. pp. 1-18), the parties appeared before the IHO over the course of three dates between September 18, 2024 and November 26, 2024 for an impartial hearing (see Sept. 18, 2024 Tr. pp. 19-96; Oct. 17, 2024 Tr. pp. 1-24; Nov. 26, 2024 Tr. pp. 25-59). 

The IHO issued an interim decision on pendency on October 8, 2024, ordering the district to "provide the Student with a pendency program as set forth in the Student's March 31, 2022 IEP," retroactive to the filing of the due process complaint notice on July 5, 2024, as the IHO found that the March 2022 IEP constituted the student's last agreed-upon placement (IHO Ex. III). 

In a decision dated January 14, 2025, the IHO found that the district established that it offered the student a FAPE for the 2024-25 school year (IHO Decision at pp. 7-8).  The IHO found that the district complied with the procedural requirements of the IDEA, and that "any procedural infirmities did not rise to the level of a deprivation of a FAPE" (id. at p. 7). [10]  Initially, the IHO found that the district developed the May 2024 IEP based on sufficient evaluative information (id.).  The IHO then found that, despite the parent's contentions otherwise, the district's "SESIS" log in evidence indicated that the district timely sent the parent a school location letter on June 14, 2024, and that the prior written notice and school location letter were translated into the parent's native language on June 20, 2024 (id.).  The IHO further found that the parent testified to receiving the school location letter and understanding the public school recommended by the district (id.).  The IHO also found that the May 2024 CSE's recommendations were substantively appropriate and reasonably calculated to enable the student to make educational progress during the 2024-25 school year (id. at pp. 7-8).  The IHO credited the testimony of the district school psychologist that the recommended 12:1+4 special class placement with related services and additional supports was appropriate for the student and that the student would have been in a class with other students with similar needs (id.).  The IHO also noted that the student fit within the definition of being appropriate for placement in a 12:1+(3:1) special class, which is for students "with severe multiple disabilities whose programs consist primarily of habilitation and treatment" (id. at p. 8).  The IHO then found that the evidence in the hearing record did not support the parent's contention that "only a 6:1:1 class" could provide the student with an appropriate educational environment to make progress (id.).  Turning to the parent's arguments regarding an extended school day, the IHO found the parent's contention speculative, and specifically noted that the May 2024 IEP provided that the related services were recommended to be provided as either push-in or pull-out services, meaning the student could have received all of the related services during the school day (id.).  The IHO further found that the CSE's failure to recommend music therapy did not result in the denial of a FAPE, as the student's needs were addressed overall under the recommendations included in the May 2024 IEP, and the IHO credited the district school psychologist's testimony that the needs targeted by music therapy could have been addressed by the other recommendations in the IEP (id.).   Finally, the IHO found that the parent's claims related to the ability of the recommended school location to implement the student's IEP were speculative, and not supported by any evidence in the record, as the student never attended the public school location, the parent was timely informed of the school location, and the parent never visited the assigned public school site  (id.).

The IHO additionally indicated that, as the district had met its burden, it was not necessary to address the appropriateness of the parent's unilateral placement or equitable considerations, but the IHO nonetheless issued alternative findings on those two matters (IHO Decision at pp. 8-9).  The IHO found that the parent did not meet her burden to establish that the unilateral placement was appropriate, as there was testimony and evidence that the student received only approximately 30-minutes to two hours of academic instruction a day, as compared to the 35 periods of academic instruction offered by the district (id. at p. 9).  With respect to equitable considerations, the IHO found that the costs of the student's privately obtained special transportation and nursing services were excessive, and that the district offered those services through the May 2024 IEP, but there was no evidence that the parent requested such services before contracting with private providers (id.).  The IHO would have denied the parent's request for district funding of the student's private special transportation and nursing providers in their entirety, and additionally would have reduced the student's funding of tuition by 50 percent as the IHO found that the cost of tuition was excessive and unreasonable in relation to the minimal academic instruction provided by iBrain (id.). 

The IHO further denied the parent's requests for a district assistive technology evaluation and district funding for an IEE in the areas of a neuropsychological evaluation and educational and transition evaluations, as these were previously awarded to the parent by the IHO in a separate proceeding (IHO Decision at p. 9).  The IHO dismissed the parent's claims in their entirety, with prejudice (id. at pp. 9-10).   

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the alleged procedural violations by the district did not rise to the level of a denial of FAPE and that the May 2024 IEP was substantively appropriate.  The parent contends that the IHO improperly placed the burden to establish the district's procedural deficiencies on her.  The parent further alleges that the IHO erred by finding that the district sent her a prior written notice and school location letter in her native language.  The parent alleges that the SESIS log, which the IHO used to support his conclusion, indicates that the IEP was translated, not the above two letters.  Additionally, the parent alleges that a school location letter was sent on June 14, 2024, "a mere two weeks prior to the start of the" 2024-25 school year, which gave the parent "only minimal time to investigate the recommended school."  The parent contends that the lack of a translated prior written notice denied her from meaningfully participating in the development of the student's IEP, and the timing of the school location letter denied her right to obtain relevant and timely information about the proposed school.  With respect to substantive appropriateness of the May 2024 IEP, the parent contends that because regulations dictate that students who require a high degree of individualized attention and intervention throughout the school day must be placed in a classroom of no more than six students, the student's iBrain education plan indicated he required a 6:1+1 classroom, but a 12:1+4 classroom was ultimately recommended.  The parent further contends that the district witness did not explain why the CSE recommended a larger class size, the CSE did not have an explanation for why it did not recommend music therapy, and the district failed to establish that it was factually possible for the IEP to be implemented without an extended school day.  The parent additionally contends that the IHO erred in finding that the "recommendation of 'school nurse services' was equivalent to '1:1 nursing services' which" the student required. [11]  The parent also claims that her contentions with respect to the recommended school location being inappropriate for lack of accessibility were not speculative. 

The parent also contends, among other things, that the IHO erred in finding that the student's unilateral placement at iBrain was not appropriate and the IHO erred in finding that a 50 percent reduction of tuition, and a 100 percent reduction of special transportation and nursing services would have been warranted under equitable considerations.

In an answer, the district addresses the parent's arguments and argues for upholding the IHO's findings that it met its burden in demonstrating that it offered the student with a FAPE for the 2024-25 extended school year. [12]  The district argues, among other things, that the concerns of the parent and iBrain representatives were incorporated into the May 2024 IEP, and that the recommendation of placing the student in a 12:1+(3:1) special class in a specialized school was appropriate, despite disagreement from representatives at iBrain, as it was the most supportive classroom available, and had a similar adult-to-student ratio as the 6:1+1 special class preferred by iBrain.  The district also contends that the IHO correctly credited with the school psychologist's testimony that music therapy was not necessary for the provision of a FAPE, as the recommended program sufficiently addressed the student's needs.  With respect to alleged procedural violations, the district argues that the alleged failure to send a school location letter and prior written notice in the parent's native language did not significantly impede the parent's opportunity to participate in the decision-making process, or deprive the student of a FAPE, as the parent testified that she was aware of the student's recommended school location and she never intended to visit.  The district notes that the parent testified to receiving the school location letter prior to the start of the 2024-25 school year, making the notification timely.  The district further asserts that the parent's contentions with respect to the adequacy of the public school placement, as well as with respect to the public school's ability to adhere to the May 2024 IEP, were speculative.  The district argues that the IHO correctly found that the parent failed to meet her burden to establish that the unilateral placement was appropriate and equitable considerations favored the district.  Finally, the district contends that the parent's additional evidence should be rejected, and that, as the parent failed to address her IEE claims in the request for review, the IHO's denial of the requested relief should be deemed final and binding.  The district asks that the parent's appeal be dismissed, her requested relief be denied in full, and that the cross-appeal be sustained in full.    

            In a reply, the parent responds to the district's contentions and reiterates many of the arguments raised in the request for review. 

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]). [13]

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 – Scope of Review

Initially, neither party has appealed from the IHO's denial of the parent's requests for an assistive technology evaluation and a publicly funded IEE, or from the IHO's determinations that the parent's contentions regarding air conditioning and peer grouping at the recommended public school site were speculative.  Accordingly, these findings have become final and binding on the parties and will not be further discussed (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, while the parent asked that the district request a CSE meeting "for [the student] to address his developmental needs" as a form of requested relief in the due process complaint notice (Parent Ex. A at p. 10), this is a matter that the IHO did not rule on, and neither party has advanced this as an issue on appeal, therefore this request for relief is deemed abandoned and will not be further addressed (8 NYCRR 279.8[c][2], [4]).  Similarly, the parent only addresses the district's determination not to recommend music therapy as a substantive issue on appeal, accordingly, the parent's contention as raised in the due process complaint notice that the district's decision as to music therapy was predetermined, an issue that was not explicitly ruled on by the IHO, has not been raised as an issue on appeal; therefore, the parent's predetermination claim is also deemed abandoned and will not be further addressed (8 NYCRR 279.8[c][2], [4]).

B. CSE Process – Prior Written Notice

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]).

Further, both federal and State regulations require that a district provide parents with certain documents in their native language—including the "results of the evaluations" ("unless it is clearly not feasible to do so")—ensure that consent and procedural notices are provided in the parents' native language, and provide a translator at all times during the impartial hearing process (see, e.g., 20 U.S.C. § 1415[b][4], [d][2]; 34 CFR 300.9[a]; 300.503[c], 300.504[d]; 8 NYCRR 154-1.3[b], 200.1[l][1], 200.4[a][9][ii], [b][6][xii], [g][2][ii], 200.5[a][4], [f][2]).  Neither the IDEA nor federal or State regulations require that a district provide parents with a copy of the IEP in their native language (Letter to Boswell, 49 IDELR 196 [OSEP 2007] [noting that while "[t]here is no requirement in IDEA or in its accompanying regulations that all IEP documents must be translated," districts are required to provide parents with full information, in their native language, of all information relevant to activities for which consent is sought]; see 34 CFR 300.9[a], 300.320; 8 NYCRR 200.1[l][1], 200.4[d][2]). [14]

            In this matter, the parent contends on appeal that the IHO erred in finding that the prior written notice was sent to her in her native language.  According to the parent, the SESIS log, that the IHO cited to in his decision, indicated that a copy of the May 2024 IEP had been translated and sent to the parent, but counter to the IHO's findings, the SESIS log did not indicate that the prior written notice was sent to the parent in her native language. [15]  The parent contends that she was entitled to receive a copy of the prior written notice in her native language and that this deficiency deprived her from meaningfully participating in the development of the May 2024 IEP. [16]

In this context, a finding that the student did not receive a FAPE for the 2024-25 school year could only be found if procedural inadequacies involving the failure  to provide the parent with the prior written notice translated into her native language significantly impeded her opportunity to participate in the decision-making process regarding the provision of a FAPE to the student (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).

Based on a review of the evidence and testimony in the hearing record, I agree with the parent that it is not clear in the SESIS logs that the prior written notice was translated into the parent's native language, despite the IHO's findings otherwise (see Dist. Ex. 5 at pp. 1-3).  However, while the parent contends that this discrepancy deprived her of the ability to meaningfully participate in the development of the student's IEP, the hearing record belies this assertion.  As noted above, an interpreter was present with the parent during the May 2024 CSE meeting, and the May 2024 IEP included feedback and concerns from the parent, as well as from iBrain representatives and the parent advocate (Parent Ex. C at pp. 16-17, 22, 51-53; Dist. Ex. 2). [17]  Additionally, while the parent is correct that it is unclear in the SESIS logs as to whether the prior written notice was translated into her native language, the logs do indicate that that a "[t]ranslated IEP [was] emailed to parents" on June 24, 2024 (Dist. Ex. 5 at p. 1). 

In light of the above, while I agree with the parent that the SESIS logs in the hearing record do not clearly establish that the student's June 14, 2024 prior written notice was translated into her native language, any procedural inadequacy of failing to send the parent a prior written notice in her native language in this instance did not significantly impede her opportunity to participate in the decision-making process regarding the provision of a FAPE to the student.  While a prior written notice, as a procedural matter, must be provided in a parent's native language under IDEA and State regulation, federal and state law do not similarly mandate that the IEP itself must be translated and sent to a parent.  However, the evidence shows that the district nevertheless sent a translated IEP to the parent in this instance along with complying with the procedural requirement of having an interpreter at the CSE meeting itself.  Accordingly, there is insufficient basis to overturn the IHO's overall conclusion that the procedural infirmity did not rise to the level of a deprivation of a FAPE, as the testimony and evidence in the hearing record supports that conclusion (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; see IHO Decision at p. 7). 

C. FAPE - May 2024 IEP

1. Student Needs

Although the student's needs are not in dispute, as the May 2024 CSE adopted many of the student descriptions from the iBrain draft education plan, a brief review thereof provides context to determine the appropriateness of the May 2024 CSE's recommended program for the student for the 2024-25 school year (see Parent Ex. C at p. 10).

At the start of the 12-month 2024-25 school year, the May 2024 IEP, with an implementation date of June 10, 2024, was in effect (Parent Ex. C at pp. 1, 42-44, 52).  As noted above, the May 2024 CSE recommended the student's placement in a 12:1+(3:1) special class for 35 periods per week and adapted physical education for three periods per week in a district specialized school, along with related services; supplementary aids and services; and assistive technology devices and services (Parent Ex. C at pp. 42-44).

            According to the May 2024 IEP, the student was described as a sweet and happy boy who was nonverbal and nonambulatory, and he had received diagnoses that included congenital heart disease, a specific syndrome, epileptic encephalopathy, global developmental delay, and cortical visual impairment (Parent Ex. C at p. 10).  The student was described as "very medically fragile," in that he depended on a gastrostomy tube (g-tube) for nutrition, and that he had a tracheostomy with ventilation (Sept. 18, 2024 Tr. p. 92).  The IEP indicated that the student had not attended iBrain since January 2024 "due to extended hospitalizations and receiving rehabilitation treatment" (id. at p. 12). 

            In terms of cognitive skills, according to the May 2024 IEP, the student could be observed using functional joint attention as evidenced by shared eye gaze and occasionally smiling (Parent Ex. C at p. 12).  However, during more challenging sessions, when the student was lethargic or had experienced seizure activity, the student demonstrated difficulty participating in most session activities (id. at p. 13).  The IEP indicated the student had no object permanence and would not look for items that were taken out of his sight (id. at p. 11).  He had some awareness of cause and effect and changes in his environment, and inconsistently responded to his name (id. at pp. 10, 11).  Regarding communication skills, the IEP indicated that the student had his needs met primarily through eye gaze, and occasional vocalizing (id. at p. 12).  The IEP noted that during his assistive technology sessions, the student used a trial device, a Tobii Dynavox I-16 eye gaze device with TDSnap speech generating software, as his primary mode of communication (id. at p. 13).  Additionally, the student used a BIGmack switch or jellybean switches as an additional method of communication (id.).  However, the May 2024 IEP noted that it was difficult to determine how much of the student's verbal expression via switches and eye gaze was meaningful or intentional (id. at p. 6).   

            With respect to physical development, the May 2024 IEP indicated that according to the Gross Motor Function Classification System (GMFCS) the student's various structural and functional impairments made school and community participation difficult for him (Parent Ex. C at p. 8).  Specifically, according to the IEP, the student had "no means of independent movement," he was transported in a wheelchair with transfers requiring complete physical assistance from an adult, and he had limited ability to maintain antigravity head and trunk postures, and control arm and leg movements (id.).  The IEP noted that the, "presence of decreased muscle strength ma[de] it difficult for [the student] to sit without his wheelchair or assistance from his paraprofessional, teachers, and family members" (id.).  The student's low tone made it difficult for him to initiate reaching for switches and toys to communicate his choices and participate in school activities (id.).  Further, the student's protective reactions and equilibrium responses were "absent" (id.).  Regarding vision development, the IEP noted that the student had been able to tactually attend to braille characters, raised line shapes and images with textures, with "hand-under-hand supports" (id. at p. 17). 

            According to the IEP, the student required 1:1 paraprofessional services and a 1:1 nurse to support his medical, physical, cognitive, and sensory needs throughout the day, including to ensure safety, perform transfers, manage his g-tube, assist with changing and activities of daily living, assume and maintain various positions, and to sustain arousal level (id. at pp. 15-16). 

2. May 2024 IEP Recommendations and Educational Placement

a. Music Therapy

            The parent contended in the due process complaint notice that the failure to recommend music therapy for the student was a denial of FAPE for the 2024-25 school year (Parent Ex. A at p. 7).  The IHO found that the recommendations and annual goals in the May 2024 IEP overall addressed the student's skill needs, and that the CSE's decision not to specifically recommend music therapy did not result in a denial of a FAPE (IHO Decision at p. 8).  The IHO credited the testimony of the district school psychologist that the May 2024 CSE determined the student's needs targeted by music therapy at iBrain could be addressed by the other recommendations in the May 2024 IEP (id.).  On appeal, the parent contends that the May 2024 IEP did not contain a "cogent and responsive explanation" of why the district did not choose to recommend music therapy for the student for the 2024-25 school year.  Review of the hearing record supports the IHO's determination that the May 2024 CSE recommended related services and annual goals, which were congruent with the student's areas of need iBrain targeted with music therapy. 

During the 2024-25 school year, while attending iBrain, the student received three 60-minute sessions per week of music therapy (Parent Ex. B at pp. 53-55, 60-61).  It was expressly noted in the May 2024 IEP that music therapy was not being recommended, despite noted concerns by iBrain representatives, as "[t]he team discussed that music [could] be used as an instructional tool to support with engagement throughout the school day" (Parent Ex. C at pp. 16, 51-52; see Sept. 18, 2024 Tr. pp. 48-50).

A district school psychologist, who also served as the district representative at the May 2024 CSE meeting, testified that, at the time of the May 2024 CSE meeting, she believed that the CSE had discussed music therapy and then determined that the student's needs for the areas and skills that were being targeted with music therapy could be addressed by the other services the CSE recommended, while also noting that she did not recall any specific evaluative data to that purpose (Sept. 18, 2024 Tr. pp. 49-50). [18]

The April 2024 iBrain progress report, which the May 2024 CSE considered, noted  music therapy goals: in the area of cognition to target the student's need to increase in arousal and attention maintenance; in the area of communication to improve the student's use of total communication to engage with conversation partners; and in the area of sensorimotor skills, to increase functional movements during music-based activities by participating in patterned sensory enhancement (Parent Ex. G at pp. 6-8).  The May 2024 CSE recommended annual goals to target the student's needs in the same instructional areas targeted by iBrain (compare Parent Ex. C at pp. 28-33, 36-37 with Parent Ex. G at pp. 6-8).  For example, the May 2024 CSE recommended an annual goal which targeted the student's need to increase the use of his sensory channels such as turning towards a sound source successfully, showing visual attention successfully, and tactilely attending to tangible symbols successfully (Parent Ex. C at p. 28).  Another goal recommended by the May 2024 CSE targeted the student's need to increase participation in play and leisure activities (see id. at p. 37).  As discussed above, the May 2024 CSE recommended related services including OT, PT, speech-language therapy, and vision education services as well as assistive technology services in addition to a 12:1+(3:1) special class and adapted physical education in order to address the above described annual goals (Parent Ex. C at p. 42-44).

Thus, based on the evidence in the hearing record, it appears that music therapy at iBrain offered a different approach for addressing the student's needs, and that the May 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 May 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 parent 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]).  The parent's request to overturn the IHO's decision on this basis must be rejected.

b. 12:1+(3:1) Special Class Recommendation

In his decision, the IHO found that the evidence in the hearing record failed to support the parent's argument that only a 6:1+1 special class could have provided an educational environment that would have allowed the student to make progress (IHO Decision at p. 8).  The parent contends on appeal that the IHO erred in his finding, as the student needed a small, highly structured learning environment, and that State regulation mandates that students, like the student in this matter, who require a high degree of individualized attention and intervention throughout the school day, must be placed in a classroom of no more than six students.  The parent further contends that the May 2024 IEP, which was based on an "iBrain IEP," indicated that the student required a 6:1+1 special class placement, but that this was later contradicted by the ultimate recommendation in the IEP of a 12:1+(3:1) special class, and that the district school psychologist was unable to provide testimony that "could actually explain, beyond offering conclusory statements, why the CSE recommended a significantly larger class size than what the [s]tudent attended at the time of the [May 2024 CSE] meeting." 

As noted above, the May 2024 CSE recommended a 12:1+(3:1) special class placement for 35 periods per week, adapted physical education for three periods per week, along with related services consisting of 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, and three 60-minute sessions per week of individual vision education services, as well as 1:1 school nurse services, the support of a 1:1 paraprofessional, assistive technology devices and services and supportive management needs for the student including human management needs, environmental management needs, and material management needs including assistive technology (Parent Ex. C at pp. 22-23, 42-44).

State regulation indicates that the maximum class size for special classes containing students whose management needs are determined to be highly intensive and requiring a high degree of individualized attention and intervention, shall not exceed six students, with one or more supplementary school personnel assigned to each class during periods of instruction (8 NYCRR 200.6[h][4][ii][a]).  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]).  In contrast, according to State regulation "the maximum class size for those students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment, shall not exceed 12 students" (see 8 NYCRR 200.6 [h][4][iii]).  In addition to the teacher, the staff/student ratio shall be one staff person to three students (id.).  The additional staff may be teachers, supplementary school personnel, and/or related service providers (id.).

A review of the student's needs reflects that in totality, the program and services recommended by the May 2024 CSE, including the recommendation for a 12:1+(3:1) special class, was likely to result in educational benefit for the student. 

The May 2024 IEP took much of the student's present levels of performance from a draft education plan created by iBrain, including a statement that the student "need[ed] a small, quiet multi-sensory setting 6:1:1 classroom setting for him to make progress academically" (Parent Ex. C at pp. 10, 11). [19]  Further, the IEP noted that the student required an environment which offered "highly individualized attention and support, via small class size and continual adult supervision via a 1:1 paraprofessional, throughout the duration of the school day" and that the student "require[d] an environment that c[ould] meet his significant academic needs" (id.).  The district school psychologist testified that the CSE's recommendation for a 12:1+(3:1) special class was based on the student's identified needs and the available continuum of services (Sept. 18, 2024 Tr. p. 58).  She further testified that, despite following the recommendations of iBrain in other areas, the CSE believed that a 12:1+(3:1) special class, which included a 3:1 student-to-teacher ratio and an additional recommendation for the support of 1:1 nursing services, would have provided adequate support to the student, individualized attention, and a small student-to-teacher ratio, which would have been suitable for the student to make progress (Sept. 18, 2024 Tr. p. 68).  She further testified that, while class size doesn't guarantee limited distractions, the educational environment should have fostered minimal distractions (Sept. 18, 2024 Tr. pp. 68-69).  The school psychologist's testimonial affidavit further supported the May 2024 CSE's recommendation for a 12:1+(3:1) class, in light of the student's medical conditions, developmental delays, and need for various supports (Dist. Ex. 9 ¶¶ 10-11).  The school psychologist testified by affidavit that a 12:1+(3:1) special class setting, along with related services, was appropriate for the student's educational progress in the 2024-25 school year (Dist. Ex. 9 ¶ 17).  Additionally, the prior written notice, dated June 14, 2024, indicated that other options considered by the May 2024 CSE included 6:1+1, 8:1+1, and a 12:1+1 special classes in a specialized school, and that those options were rejected because those placements would not have met the student's needs, despite the concerns expressed by the parent, iBrain representatives, and parent advocate with the respect to the recommended program overall (Dist. Ex. 4 at p. 4). 

Turning to the specific assertion that because the student had highly intensive management needs, the CSE was required to recommend placement in a 6:1+1 special class, as stated above, State regulation does provide that "[t]he maximum class size for special classes containing students whose management needs are determined to be highly intensive, and requiring a high degree of individualized attention and intervention, shall not exceed six students, with one or more supplementary school personnel assigned to each class during periods of instruction" (8 NYCRR 200.6[h][4][ii][a]).  However, the adult-to-student ratio required in a 6:1+1 special class and a 12:1+(3:1) special class is similar; with the 12:1+(3:1) special class ratio providing slightly more adults in the classroom per student and, additionally, providing for more variety in the type of school personnel working with the student.  Accordingly, generally, while the student may exhibit highly intensive management needs and require a high or significant degree of individualized attention and intervention (see 8 NYCRR 200.6[h][4][ii][a]-[b]), the parent's strict adherence to the language in State regulation guiding 6:1+1 special class placements to the exclusion of other appropriate placement options is reductive and overlooks the evidence in the hearing record showing that the student's highly intensive needs required consistent adult support for him to function in school (see Parent Ex. C at pp. 22-23; see generally Parent Ex. D).

Additionally, the Second Circuit has observed that "[i]n the continuum of classroom options, the [12:1+(3:1) special class recommendation] is the most supportive classroom available" (Navarro Carrillo v. New York City Dep't of Educ., 2023 WL 3162127, at *3 [2d Cir. May 1, 2023], but see Cruz v. Banks, 2025 WL 1108101 at *1, *4-*8 [2d Cir. Apr. 15, 2025][certifying a question of State law to the New York Court of Appeals to determine whether or not the district may choose one class size over another when a student meets the regulatory requirements of two class size regulations, or must the district satisfy both regulations]). [20]  And, where a student's needs could be deemed to fit within the definitions for more than one special class ratio, such as a 6:1+1 or a 12:1+(3:1) special class, pursuant to the definitions set forth in State regulation, the student's unique needs must dictate the analysis of whether the CSE recommended an appropriate class size (Carrillo v. Carranza, 2021 WL 4137663, at *17 [S.D.N.Y. Sept. 10, 2021], aff'd sub nom., Navarro Carrillo, 2023 WL 3162127).

Overall, the hearing record supports the May 2024 CSE's determination to place the student in a 12:+(3:1) special class with the additional recommended supports.  While the student was attending a 6:1+1 special class at his private school and a review of the student's needs shows that the 6:1+1 special class placement may also have been an appropriate placement for the student, a 12:1+(3:1) special class placement consisting of habilitation and treatment was an appropriate recommendation given the student's multiple disabilities and need for a high level of adult support in the classroom (see 8 NYCRR 200.6[h][4][iii]). 

Comparisons of a unilateral placement to the public placement are not a relevant inquiry when determining whether the district offered the student a FAPE; rather, it must be determined whether or not the district established that it complied with the procedural requirements set forth in the IDEA and State regulations with regard to the specific issues raised in the due process complaint notice, and whether the IEP developed by its CSE through the IDEA's procedures was substantively appropriate because it was reasonably calculated to enable the student to receive educational benefits—irrespective of whether the parent's preferred program was also appropriate (Rowley, 458 U.S. at 189, 206-07; R.E, 694 F.3d at 189-90; M.H., 685 F.3d at 245; Cerra, 427 F.3d at 192; Walczak, 142 F.3d at 132; see R.B. v. New York City Dep't. of Educ., 2013 WL 5438605 at *15 [S.D.N.Y. Sept. 27, 2013] [explaining that the appropriateness of a district's program is determined by its compliance with the IDEA's requirements, not by its similarity (or lack thereof) to the unilateral placement], aff'd, 589 Fed. App'x 572 [2d Cir. Oct. 29, 2014]; M.H. v. New York City Dep't. of Educ., 2011 WL 609880, at *11 [S.D.N.Y. Feb. 16, 2011] [finding that "'the appropriateness of a public school placement shall not be determined by comparison with a private school placement preferred by the parent'"], quoting M.B. v. Arlington Cent. Sch. Dist., 2002 WL 389151, at *9 [S.D.N.Y. Mar. 12, 2002]; see also Angevine v. Smith, 959 F.2d 292, 296 [D.C. Cir. 1992] [noting the irrelevancy comparisons that were made of a public school and unilateral placement]; B.M. v. Encinitas Union Sch. Dist., 2013 WL 593417, at *8 [S.D. Cal. Feb. 14, 2013] [noting that "'[e]ven if the services requested by parents would better serve the student's needs than the services offered in an IEP, this does not mean that the services offered are inappropriate, as long as the IEP is reasonably calculated to provide the student with educational benefits'"], quoting D.H. v. Poway Unified Sch. Dist., 2011 WL 883003, at *5 [S.D. Cal. Mar. 14, 2011]). 

Accordingly, based on all of the above, the CSE was not required to duplicate the special class size provided to the student at iBrain and the May 2024 CSE's determination to place the student in a 12:1+(3:1) special class, along with the other recommended management needs and supports, as well as related services including both full-time 1:1 nursing services and 1:1 paraprofessional services, was reasonably calculated to afford the student educational benefit.  Therefore, I do not find a basis to disturb the IHO's determination that the recommended class ratio was appropriate.

D. Assigned Public School Site

1. Timeliness of School Assignment

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.  This analysis also fits with the competing notions that, while a district's assignment of a student to a particular school site is an administrative decision which must be made in conformance with the CSE's educational placement recommendation (see M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244-45 [2d Cir. 2015]), 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]).

Here, there is no dispute that the district provided the parent with a school location letter dated June 14, 2024 (Dist. Ex. 4 at pp. 6-7).  However, the parent has contended that the IHO erred in finding that the school location letter was "timely" sent to her, because it was sent to her "a mere two weeks prior to the start of the" 2024-25 extended school year, "g[iving] her only minimal time to investigate the recommended school [site]" (Req. for Review ⁋ 18). [21] 

The evidence in this case shows that the student was already attending iBrain at the time of the 2023-24 school year and when the May 2024 CSE meeting was conducted (Dist. Exs. 1; 2; IHO Ex. II at p. 3). While the school location letter was sent after the CSE meeting, and within weeks of the first day of the 2024-25 school year, it was nonetheless provided to the parent prior to the beginning of the 2024-25 school year, and, in this instance, it did not deny the parent an opportunity to learn about the school location.  In particular, the parent testified that she received the school location letter, she knew the school the student was assigned to, and she did not visit the school site because she "didn't have to because [the student] was in that school" previously, and she "had a lot of reports for negligence due to [the student]" during his previous attendance (Oct. 17, 2024 Tr. p. 15).  Further, the parent's testimony implies that she would not "have acted differently had she been notified of the school placement . . . earlier or that, had she learned of the school earlier that she had any 'intention of exploring or understanding the placement or of seeking alternatives and adjustments at a different District [specialized] public school placement' " (Ambrister v. Banks, 2024 WL 4326933, at *4 [S.D.N.Y. Sept. 27, 2024]).

Review of the hearing record in this matter shows that even if the district's  school location letter sent on June 14, 2024 resulted in a delay in notifying the parent of the school that the student was assigned to attend to receive the educational programming recommended in the May 2024 IEP, this did not rise to the level of denial of a FAPE to the student.

2. Extended School Day Services

The IHO found that the parent's contention that the student required an extended school day in order to receive all of his recommended related services was not persuasive, because the May 2024 IEP provided that the related services were able to be provided in a separate location or in the classroom or therapy area, and that they could be provided as push-in or pull-out services, making it unnecessary for the student to have an extended school day (IHO Decision at p. 8).  On appeal, the parent contends that the district failed to present a witness who could testify that it was "factually possible" to implement the recommendations in the May 2024 IEP, and that, while the IEP recommended that related services be provided in a push-in or pull-out basis, the student required "at least some, if not most or all" of his 17 hours of related services to be provided on a pull-out basis in order to follow the management need that the student required a closed treatment space for successful introduction of gross motor activity and prevention of distraction (Req. for Review  ⁋ 24 citing Parent Ex. C at p. 22).  The parent further contends that this claim is not speculative, but a valid concern that it would be factually impossible to implement the May 2024 IEP, as written.   

While the parent asserts that the May 2024 CSE's failure to recommend an extended school day 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 May 2024 IEP.  Regardless of whether the parent's claim is read as a substantive attack on the May 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 student's recommended related  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]).

As noted earlier in this decision, in relation to the 2024-25 school year, the May 2024 CSE recommended four 60-minute sessions per week of individual OT; four 60-minute sessions of individual speech-language therapy; five 60-minute sessions per week of individual PT; and three 60-minute sessions per week of individual vision education services, all to be delivered in a separate location at the provider's discretion including in the classroom or in a therapy area (Parent Ex. C at pp. 43-44).  The CSE further recommended one 60-minute session per week of individual assistive technology services also to be delivered in the classroom or in the therapy area at the provider's discretion (id. at p. 44).  The school psychologist testified that the district public school would have been required to implement the recommendations in the student's IEP (September 18, 2024 Tr. pp. 62-63, 65-66). 

Overall, the CSE recommended approximately 17 hours of related services with discretion as to whether those services would be provided in the classroom or in a separate therapy area (Parent Ex. C at pp. 43-44).  The CSE further recommended placement in a 12:1+(3:1) special class for 35 periods per week and three periods per week of adapted physical education, which could be provided in a gym facility, classroom, or other facility (id. at p. 42).  Accordingly, with the use of related services pushed into the classroom it would have been possible for the student to receive all of the recommended services.

Turning to the parent's assertion that the management needs could not have been implemented, the May 2024 IEP also include management needs which noted the student required "[c]losed treatment space for successful introduction of gross motor activity and prevention of distraction" (Parent Ex. C at p. 22).  However, review of this particular management need is not an indication that all of the student's related services needed to be delivered in a separate classroom, instead, it is an indication that some activities related to gross motor skills needed to be provided in a closed treatment space (id.).  Accordingly, it does not provide a sufficient basis for departing from the IHO's decision.

Based on the above, there was nothing in the May 2024 IEP that prevented the student's related services providers from delivering the student's related services in the student's 12:1+(3+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. [22]  Additionally, the school psychologist was correct in that, as noted earlier in this decision, the district is not permitted to deviate from the provisions set forth in the IEP, and would be required to implement the student's recommendations from the May 2024 IEP (M.O., 793 F.3d at 244; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F., 746 F.3d at 79).    Therefore, I do not find a sufficient basis to disturb the IHO's finding that it was unnecessary for the student to be placed in an extended school day. 

3. Building Accessibility

The IHO found that, as the parent was timely informed of the student's recommended school site for the 2024-25 school year, and, as the parent testified to not visiting the school site after having received that letter, the parent's claims in the due process complaint notice that the school site was not adequately accessible, among other contentions, were speculative and not supported by the evidence in the record (IHO Decision at p. 8).  On appeal, the parent contends that this was error, as the district's website allegedly indicates that the public school site had no wheelchair accessible classrooms, despite the student being wheelchair-bound. [23]  The district contends that the parent's claims are impermissibly speculative, as the parent never visited the recommended public school site, and there was no support that the recommended placement was deficient. 

As is relevant here, and, as noted above, the May 2024 IEP indicated that the student needed an accessible school building, and that he had limited mobility, used a wheelchair, and used walking aids (Parent Ex. C at p. 51).  Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88).  The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]).  However, a district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]).  The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. 2015]).  Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5).  Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244).  In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]).  Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F., 2016 WL 3981370, at *13; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).

As the student's May 2024 IEP indicated that the student required an accessible building, the district's assignment of the student to the public school site was required to be made in conformance with those recommendations.  As discussed earlier in this decision, the parent testified to not arranging a visit with, or seeking further information on, the student's recommended public school site for the 2024-25 school year due to her alleged familiarity with the site when the student had actually attended the school previously (Oct. 17, 2024 Tr. p. 15).  As the student never attended the assigned public school site pursuant to the May 2024 IEP, I agree with the IHO that the parents' claims are without merit.  Any conclusion that the district would not have implemented the student's IEP or that the assigned public school site could not meet the student's needs would necessarily be based on impermissible speculation, and the district was not obligated to present retrospective evidence at the impartial hearing regarding implementation of the student's programming under the IEP or to refute the parent's claims (R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 [2d Cir. Jan. 8, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 187 & n.3]).

VII. Conclusion

Having found that the IHO correctly determined that the district offered the student a FAPE for the 2024-25 extended school year, the necessary inquiry is at an end.  Accordingly, it is not necessary to further address whether the unilateral placement was appropriate or review the IHO's alternative determinations regarding equitable considerations (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134) .

THE APPEAL IS DISMISSED.