I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from the decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) reimburse her for the costs of her daughter's tuition at the International Academy for the Brain (iBrain) for the 2023-24 and 2024-25 school years.  The district cross-appeals from that portion of the IHO's decision which found iBrain was an appropriate unilateral placement for the 2023-24 school year.  The appeal must be sustained in part.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4[a]).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

In this matter, the student was referred for an initial evaluation, and in a prior written notice to the parent, dated December 14, 2023 (December 2023 prior written notice), the district explained that the evaluation process would include a "social history, a psychological evaluation, a physical examination, and an observation" to determine the student's needs (Dist. Ex. 1 at p. 1).  A request for physical examination form accompanied the December 2023 prior written notice sent to the parent (id. at pp. 6-8).[1]

In a prior written notice to the parent dated January 5, 2024 (January 2024 prior written notice), the district notified the parent of the recommendations made in a "Comparable Services Plan" to address the student's needs (Dist. Ex. 2 at p. 1).[2]  The prior written notice indicated that the student "present[ed] with a congenital disorder and require[d] [] intensive individualized support," had received a diagnosis of cerebral palsy, was nonverbal, and exhibited difficulty swallowing (id. at p. 3).  According to the January 2024 prior written notice, the student would receive the following services until the district developed an IEP for the student: a 12:1+(3:1) special class placement for instruction in English language arts (ELA) (eight periods per week), mathematics (eight periods per week), social studies (four periods per week), and sciences (four periods per week) beginning on January 19, 2024 (id. at p. 1).  The comparable services plan also included recommendations for the following related services: three 30-minute sessions per week of individual occupational therapy (OT), three 30-minute sessions per week of individual physical therapy (PT), and three 30-minute sessions per week of individual speech-language therapy, as well as the services of a full-time, individual paraprofessional (health, ambulation) all beginning on January 19, 2024 (id. at p. 2).  Finally, the comparable services plan included a recommendation for special transportation (wheelchair accessible, lift, closest curb to school) (id.).  According to the comparable services plan, the student was also recommended to attend a district specialized school (id.).

In addition to identifying the special education program recommendations for the student, the January 2024 prior written notice included an explanation for the proposed action, i.e., the comparable services plan for the student, which indicated that the student had "an IEP from another school district" (Dist. Ex. 2 at pp. 2-3).[3]  The information relied upon to develop the comparable services plan included the "IEP and any assessments and reports" provided by the parent and the prior district, as well as medical documentation, dated December 14, 2023, provided by the parent (id.).[4]

On January 8, 2024, a district bilingual school social worker completed a social history (January 2024 social history) with the parent (see Dist. Ex. 3 at p. 1).[5]  According to the social history, the parent referred the student for an evaluation because the student was "physically disabled and ha[d] cerebral palsy," and the student could not speak, walk, or use the bathroom independently (id.).  The social history reflected that the student had not been exposed to any other language, other than her native language, which was also the only language spoken at home (id. at p. 2).  With respect to her educational history, the parent reported that the student began attending a "specialized school" at age five in another country, and she had attended the same school for first, second, and third grades (id.).  The parent also reported that, after coming to the United States in October 2023, the student "only attended two months in fourth grade" in a classroom with "four students and one teacher," and she had received speech-language therapy, PT, and "'stimulation' therapy" (id. at pp. 2-3).[6]  The parent also reported that the student had received "hydrotherapy in a pool," but it was discontinued due to costs (id. at p. 3).  At that time, the student was "nonverbal," but the parent indicated that she "underst[ood] spoken language and respond[ed] with facial expressions, and vocalizations such as babbling and cooing" (id.).

On January 17, 2024, the district conducted a psychoeducational evaluation (January 2024 psychoeducational evaluation) of the student in her native language (see Dist. Ex. 4 at p. 1).  The parent reported that the student had difficulty swallowing and required "mostly a liquid food intake"; it was also noted that the student ate a "variety of foods" that needed to be "pureed" (id.).  The parent indicated that the student could not "reach, grab, or manipulate objects"; she could not "verbally communicate but ma[de] vocalizations, such as vowel sounds"; and the student could not "sign, point, or make gestures" (id.).  In summarizing the student's testing results, the evaluator indicated that, although she had attempted to measure the student's cognitive skills and academic functioning, the student was "unable to meet the demands of the tests, and the assessment was discontinued" (id. at pp. 2, 5).  The parent completed the Vineland Adaptive Behavior Scales, Third Edition (Vineland-3) as part of the evaluation process in light of the student's "difficulties with daily living skills" (id. at pp. 4-5).  The results indicated that the student had "[l]ow adaptive behavior skills in communication, daily living, socialization, and motor skills" (id. at p. 5).

Evidence in the hearing record reflects that, on or about February 14, 2024, the student was discharged from enrollment from one district public school because she had "transferred to another [district] school [or] pr[o]g[ra]m," and the same evidence identified the new district public school (Dist. Ex. 5).  According to the evidence, the student had "entered" the district public school on or about November 9, 2023, and since that time, she had attended school for 3 days and was absent for 57 days (id.).

On February 15, 2024, the student was seen at iBrain for an initial evaluation, which included a vision evaluation (completed virtually), a music therapy evaluation, and a speech-language evaluation (see Parent Ex. B at pp. 2, 11, 15, 18).  The evidence in the hearing record indicates that the student began attending iBrain on March 25, 2024 (id. at p. 13; see Tr. p. 7).[7]^, [8]  The evidence in the hearing record further indicates that, upon her enrollment at iBrain, the student was seen for an assistive technology evaluation (see Parent Ex. B at p. 16).

On June 13, 2024, iBrain developed an "iBrain Report and Education Plan" (June 2024 iBrain plan) for the student, which included recommendations for 12-month programming consisting of an 8:1+1 special class placement for an extended day, beginning on July 2, 2024 (Parent Ex. B at pp. 47-48).[9]  In addition, the iBrain plan included recommendations for the following related services for the student: five 60-minute sessions per week of individual OT, five 60-minute sessions per week of individual PT, and five 60-minute sessions per week of individual speech-language therapy; three 60-minute sessions per week of individual music therapy; two 60-minute sessions per week of individual hearing education services; two 60-minute sessions per week of individual vision education services; and one 60-minute session per month of individual and group parent counseling and training services (id. at p. 48).  The iBrain plan also included recommendations for the student to receive the services of a full-time, individual paraprofessional; school nurse services; one 60-minute session per week of individual assistive technology services; an assistive technology device; and support for school personnel on behalf of the student (i.e., training for use of assistive technology, braces and orthotics, use of direct instruction, and allergy precautions) (id. at pp. 48-49).  The student's June 2024 iBrain plan also included a recommendation for special transportation services (paraprofessional, car seat, air conditioning, lift-bus with wheelchair ramp, wheelchair accessibility, and limited travel time) (id. at p. 47).

In a letter dated June 14, 2024, the parent—through her attorneys—notified the district that she was rejecting the student's most recently developed IEP for the 2024-25 school year and that she intended to "maintain the [s]tudent at their last agreed upon educational placement" at iBrain (Parent Ex. A-A at pp. 1-2).[10]  According to the letter, the parent had not received a school location letter for the 2024-25 school year, but indicated that if the district recommended the same district public school "as last year," the parent had "previously rejected that location because it was not appropriate" for the student (id. at p. 1).  In addition, the parent invoked the student's right to pendency services, and attached a district "Pendency Form already pre-populated" to the letter (id.).  The parent further noted that she "continue[d] to request" independent educational evaluations (IEEs) at public expense to assess the student's needs including, but not limited to, the following: a neuropsychological evaluation, a PT evaluation, an OT evaluation, a speech-language evaluation, special education, and assistive technology (id. at pp. 1-2).  Additionally, the parent indicated that although "there had been no officially proposed placement," she remained willing to "entertain an appropriate public or approved non-public school placement" for the student (id. at p. 2).  However, under the circumstances, the parent had "no choice other than to re-enroll" the student at iBrain" (id.).

On June 22, 2024, the parent electronically signed a "School Transportation Annual Service Agreement" with "Sisters Travel and Transportation Services, LLC" (Sisters Travel) to provide round-trip transportation service for the student from July 2, 2024, through June 27, 2025 (Parent Ex. A-E at pp. 1, 6-7).  Shortly thereafter, on June 27, 2024, the parent electronically signed an "Annual Enrollment Contract" with iBrain for the student's attendance during the 2024-25 school year from July 2, 2024 through June 27, 2025 (Parent Ex. A-D at pp. 1, 6-7).

A. Due Process Complaint Notice

By due process complaint notice dated July 2, 2024, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 and 2024-25 school years based on various procedural and substantive violations and by failing to develop an IEP for the student for the 2023-24 and 2024-25 school years (Parent Ex. A at pp. 1, 4-7).  As relief, the parent sought an order directing the district to directly fund the costs of the student's tuition at iBrain and transportation costs with Sisters Travel for the 2023-24 and 2024-25 school years (id. at p. 8).  The parent also sought an order directing the district to fund an IEE and to reconvene a CSE meeting upon completion of the IEE (id.).

B. Events Post-Dating the Due Process Complaint Notice

On August 21, 2024, a CSE convened and developed an IEP for the student for the 2024-25 school year (see Dist. Ex. 6 at pp. 1, 38).  Finding the student eligible to receive special education as a student with multiple disabilities, the August 2024 CSE recommended the following: 12-month programming consisting of an 8:1+1 special class placement in a specialized school pending the availability of an 8:1+1 special class placement in a State-approved, nonpublic day program (Spanish); five 60-minute sessions per week of individual PT; five 60-minute sessions per week individual speech-language therapy (Spanish); one 60-minute session per month of individual and group parent counseling and training (Spanish); the services of a full-time, individual paraprofessional (orientation and mobility, feeding and toileting); and one 60-minute session per week of individual assistive technology services (id. at pp. 32-34).  According to the August 2024 IEP, the projected date for implementation was August 22, 2024 (id. at p. 1).

C. Impartial Hearing Officer Decision

On September 17, 2024, the parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. p. 1).  On that day, the IHO held a prehearing conference, however, no one appeared on the district's behalf (see Tr. pp. 1-3).[11]  The impartial hearing resumed on October 7, 2024, and concluded on October 28, after four total days of proceedings (see Tr. pp. 1-175; Oct. 22, 2024 Tr. pp. 1-119; Oct. 28, 2024 Tr. pp. 120-46).  When the impartial hearing resumed on October 7, 2024, the IHO noted the interpreter's presence for the parent, and questioned whether the parent would be appearing that day as a witness (see Tr. p. 25).  The parent's attorney confirmed that the parent would attend the impartial hearing "just for [her] testimony," but not "for the entirety of the hearing" and another witness would be presented first (id.).  The IHO asked the interpreter whether she could wait for the parent's testimony or whether another interpreter needed to be located; the interpreter stated that she could "definitely stand by" for the parent's testimony (Tr. p. 26).

On October 22, 2024, when the parent's first witness concluded his testimony, the parent's attorney stated that the parent was resting her case and then confirmed that the parent was not appearing as a witness (see Oct. 22, 2024 Tr. p. 81).  The district's representative stated that the district wanted to "hear from the parent" and requested a subpoena for the parent's appearance as a "rebuttal witness" (Oct. 22, 2024 Tr. p. 83).  The district's representative indicated that she could send a subpoena to the IHO on that day, and the IHO indicated that she would "issue such a subpoena" (id.).  During further discussions of the matter, the IHO directed the parent to appear (see Oct. 22, 2024 Tr. p. 84).  The parent's attorney objected and stated that the hearing record contained sufficient evidence to conclude that the district failed to offer the student a FAPE, that iBrain was an appropriate unilateral placement, and that the director had provided testimony about his "extensive knowledge of the [iBrain education plan], [and] on the student herself" (Oct. 24, 2024 Tr. p. 85).  He also stated that the parent's testimony would only "go toward" equitable considerations (i.e., "prong three") and therefore, it was not necessary at that time (Oct. 22, 2024 Tr. pp. 85, 87).  When pressed by the IHO to indicate whether the parent would appear at the impartial hearing if so directed, the parent's attorney stated that he did not believe a subpoena should be issued, but if issued, then they would comply with the law and within the IHO's authority (see Oct. 22, 2024 Tr. pp. 91-92).  Ultimately, the IHO indicated that she would issue a subpoena if presented with one for the parent's appearance (see Oct. 22, 2024 Tr. p. 93).[12]

On October 28, 2024, the parties met with the IHO for a conference, which had been requested by the district's representative (see Oct. 28, 2024 Tr. pp. 120, 22).  According to the district's representative, she asked for the conference because, to date, the impartial hearing had not included a "substantive discussion about one of the primary issues which allowe[d] the parent to go forward in these types of cases": "residency" (Oct. 28, 2024 Tr. p. 123).  More specifically, the district's representative indicated that there was no parent to "establish that they [we]re no longer" experiencing homelessness and that they "continue[d] to reside in the school district" (id.).  In response, the parent's attorney reiterated that, as he had already stated, he last spoke with the parent on the same day as the previous impartial hearing, and the district's representative could have informed them of her concerns about residency in an email rather than "essentially sandbag[ging]" him at the impartial hearing with this information (Oct. 28, 2024 Tr. p. 125).  The IHO noted that, based on the district representative's email asking for a conference, she did not understand the email to indicate that the district would be "raising an entirely other issue" (Oct. 28, 2024, Tr. pp. 126-27).  The IHO noted, however, that the district had the right to raise residency as an issue, and then asked for more information from the district's representative (Oct. 28, 2024 Tr. p. 127).  The district representative explained that, while the evidence in the hearing record indicated that the parent was still experiencing homelessness in June 2024—which was outside the 2024-25 school year—the hearing record did not include any evidence that the parent continued to reside within the school district, and the parent's testimony could "resolve those questions" (Oct. 28, 2024 Tr. p. 128).

The parent's attorney stated that, up until this point, a parent's address or residency had "never been called into question" when a parent was experiencing homelessness in other matters, and the hearing record in this case contained sufficient evidence of the "parent's address" (Oct. 28, 2024 Tr. p. 128).  The parent's attorney also asserted that the hearing record did not include any evidence indicating that the parent had left the school district, and the same argument could essentially be made for any parent who brought a due process complaint notice (see Oct. 28, 2024 Tr. p. 130).  The IHO reminded the parent's attorney that, if the parent had testified, she could have answered questions about where she was living or if they had moved out of the school district; however, the parent declined to appear in this matter (id.).  The parent's attorney noted, however, that parents are generally never asked questions about where they reside because there was never any reason to question residency, and a family experiencing homelessness did not "raise that standard" (Oct. 28, 2024 Tr. pp. 130-31).

According to the district's representative, it was the parent attorney's "last-minute decision not to call the parent" as a witness that led her to conduct a deeper inquiry into the question of the parent's residency in this matter (Oct. 28, 2024 Tr. pp. 131-32).  She also noted that the only information about the parent's address in the hearing record was on documents that included information provided by the district (Oct. 28, 2024 Tr. p. 132).  When the IHO asked for the district representative to point to evidence supporting her assertion, the district's representative referred to parent exhibit E, which provided the parent's address as of July 2024 and which was within the school district but which was also three months ago (see Oct. 28, 2024 Tr. pp. 132-34; see generally Parent Ex. E).  The district representative then confirmed that the information within parent exhibit E—a medical authorization form—had been provided by the parent and she wanted to authenticate that information through the parent's testimony; however, the district representative further confirmed that she was not "questioning the authenticity of the document" (Oct. 28, 2024 Tr. pp. 134-35).

The district's representative attempted to also point to information within the parent's affidavit and the lack of information about the student's need for transportation services or where the student was being transported from, however the IHO reminded the district's representative that the affidavit was no longer in evidence because the parent was not appearing as a witness (see Oct. 28, 2024 Tr. p. 135).  Therefore, the IHO indicated that regardless of what the affidavit may have contained, any "information about the specifics of the transportation" were within the parent's "unique control" and "other than the contract," the hearing record did not include any further information about whether the student was receiving transportation services (Oct. 28, 2024 Tr. pp. 135-36).  The parent's attorney noted that the transportation contract was in evidence and the student was receiving those services; the IHO interjected that that was a "leap," because the existence of the transportation contract did not equate to how or if the transportation contract was being executed and the hearing record did not include any evidence of whether transportation was happening (Oct. 28, 2024 Tr. pp. 136-37).  The parent's attorney reiterated that the hearing record was sufficient for the IHO to make the necessary determinations and objected to further prolonging the impartial hearing (see Oct. 28, 2024 Tr. p. 137).  The IHO agreed that the parent was not required to present any other evidence, but the opportunity was offered to do so (id.).  But, the IHO then stated that she was "now thinking about this . . . in a different context" because, notwithstanding evidence of the transportation contract, the hearing record was devoid of evidence that the student was receiving those services and the contract, itself, was "not actually evidence that the services [we]re being received" (Oct. 28, 2024 Tr. pp. 137-38).  The parent's attorney understood the IHO's position, but noted, again, that the district's representative had had all of the evidentiary disclosures within the five-day disclosure period and only chose to raise such issues after both parties had rested their cases (see Oct. 28, 2024 Tr. p. 138).  The IHO repeated that the parent would have the opportunity to respond to any rebuttal evidence submitted by the district (see Oct. 28, 2024 Tr. pp. 138-39).

At that point, the IHO discussed the timeframe for any subpoena(s) the district wanted to present, the district representative asked for an extension to the compliance date, and the parent's attorney objected to any further extensions (see Oct. 28, 2024 Tr. pp. 139-44).  Ultimately, the IHO denied the request for an extension to the compliance date because the current compliance date left sufficient time to make any rulings needed with respect to subpoenas and the impartial hearing concluded (see Oct. 28, 2024 Tr. pp. 144-46).[13]

In a decision dated January 27, 2025, the IHO initially described the procedural history of this matter, and then turned to a description of jurisdiction and the legal framework to resolve the issues raised (see IHO Decision at pp. 2-8).  The IHO began her analysis with the parent's failure to testify or attend the impartial hearing in this matter, and the district's request to draw an adverse inference due to the parent's absence and failure to testify (id. at pp. 8-11).  After recounting the series of events that occurred prior to the parent's attorney resting his case without calling the parent to testify, the IHO noted that the "[p]arent's absence from the hearing affect[ed] the weight of the evidence on all three prongs of the Burlington/Carter analysis" (IHO Decision at pp. 8-9).  With this in mind, the IHO made the following "inferences" and "rulings" based on the parent's "absence and the withdrawal" of her affidavit: any allegations in the due process complaint notice that were not supported by evidence were disregarded; any statements made by the parent to the district in the social history, the psychoeducational evaluation report, and the student's IEP would be "given credit as accurate" and were "accepted for their truth only to the extent they [we]re undisputed or [we]re corroborated by independent reliable evidence"; the district's "SESIS log" was given "full credit in support of the [d]istrict's case"; absent confirmation by the parent, the IHO did not "credit the authenticity of the signatures" on the iBrain enrollment contract or the Sisters Travel contract, notwithstanding the "'Signature Certificate'" and the "'Document Audit Report'"; and the IHO also found that the parent's email address on those documents was "suspect, as it misspell[ed] [the p]arent's given name" and had not been used as an email address "in any communication between" the district and the parent prior to "its appearance as a 'cc'" on the June 2024 letter (10-day notice) and on the due process complaint notice, both of which had been prepared by the parent's attorney (id. at p. 10).[14]

The IHO noted that "[a]ny of these inferences could have been overcome" by the parent's testimony (IHO Decision at p. 10).  In addition, the IHO detailed how she had forewarned the parent's attorney about evidentiary deficiencies in the hearing record and how "this could affect [her] decision regarding whether {iBrain} . . . [wa]s appropriate to meet" the student's needs and regarding transportation claims (id.).  The IHO noted, however, that regardless of this cautioning, the parent's attorney "maintained the position" that the parent would not appear at the impartial hearing to testify (id. at pp. 9-10).

Next, the IHO made findings of fact with regard to the district's development of a comparable services plan for the student; the evaluation process undertaken by the district; the information obtained through the social history, physical examination form, the psychoeducational evaluation of the student, and the PT evaluation; district communications with the parent, including attempts to confirm whether the parent would accept a "specialized school location" in late January 2024; difficulties scheduling the student's PT and speech-language evaluations; the district's transfer of the student to the specialized school location in mid-February 2024; the parent's June 2024 letter notifying the district of her intention to unilaterally place the student at iBrain; the parent's decision in July 2024 to decline a district OT evaluation of the student; the events leading up to the August 2024 CSE meeting; district communications with iBrain; and the ongoing process to secure a State-approved nonpublic school placement for the student up through the impartial hearing (see IHO Decision at pp. 11-16).

Thereafter, the IHO turned to the issue of witness credibility, focusing on the parent's sole witness at the impartial hearing, namely, the deputy director of special education (director) at iBrain (see IHO Decision at pp. 16-17).  The IHO determined that the director's testimony, "as it relate[d] specifically to [the s]tudent," was "unreliable and not credible" (id. at p. 16).  According to the IHO, the director was "evasive" throughout his testimony, "profess[ing] not to understand questions and reframed questions, [and] requiring repeated admonishment" (id.).  As an example, the IHO noted that, during cross-examination, the director "professed not to understand a question about whether he had ever taught at a [d]istrict [specialized school] because, although he had never taught in a [district specialized school] classroom, he had taught in a building where a [district specialized school] was co-located" (id.).[15]  Moreover, the IHO found that "[n]othing about [the d]eputy [d]irector's testimony suggested that he had any actual first-hand knowledge of [the s]tudent" (id.).  According to the IHO, although she attempted to "overcome the vague generalities" of the director's testimony, the witness "responded only by parroting and paraphrasing what [wa]s stated in the documents" (id. at pp. 16-17).  Additionally, the IHO noted that the director "was not certain whether or not [the s]tudent ha[d] a gastric feeding tube but had to consult the Education Plan" to testify correctly (id. at p. 17).  The director's testimony also reflected that, initially, he stated that the student used an "'adaptive restroom' and only after referring to the exhibits remembered that [the s]tudent exclusively use[d] a diaper" (id.).  The IHO further noted that, while the director acted as the "primary liaison" between iBrain and the district, participated in the student's "IEP meeting, and professed to have observed" the student, he "was vague" when asked to provide the "most basic physical description" of the student, (id.).  The IHO found that the director's "description of [the s]tudent's needs and levels of performance so closely tracked [iBrain's] progress reports that [she] f[oun]d his testimony to be based wholly upon those documents and not in any way independently corroborative of the information in them" (id.).  Overall, the IHO concluded that she credited the director's testimony "only insofar as it relate[d] generally to the description of [iBrain] and its practices, but not as it relate[d] to [the s]tudent's needs or to a specific program of academic and services provided to [the s]tudent" (id.).

Pendency was the next issue addressed by the IHO (see IHO Decision at pp. 17-19).  The IHO indicated that the parent had invoked the student's right to pendency services in the due process complaint notice and sought funding for the costs of the student's tuition and transportation thereto (id. at p. 17).  According to the IHO, the parent's attorney argued that the student's pendency services consisted of the student's attendance at iBrain at district expense "because there [wa]s no 'prior implemented' IEP" (id. at p. 18).  The IHO noted, however, that this argument "overlook[ed] the history of this case, which include[d] a Comparable Service Plan, several evaluations, [the s]tudent's brief attendance (and unexplained absence) at a non-specialized public school and transfer to a [district specialized school] location" (id.).  The IHO found that, regardless of the language used in the parent's 10-day notice, the parent unilaterally removed the student from the district public schools and iBrain was a "new unilateral placement, not an operative placement" (id.).

The IHO further found that an "educational placement [wa]s a program of special education supports and services, not a brick and mortar institution" (IHO Decision at p. 19).  Additionally, the IHO pointed to Second Circuit precedent, indicating that it was up to the district to decide how to implement that educational program, so long as the district acted in good faith, and moreover, that a "new unilateral placement [wa]s not transformed into [a] pendency placement" by filing a due process complaint notice (id.).  For these reasons, the IHO concluded that iBrain was not the student's pendency placement (id.).

Next, the IHO turned to the question of whether the district offered the student a FAPE for the 2023-24 and 2024-25 school years (see IHO Decision at pp. 19-21).  Initially, the IHO found that the district complied with its child-find obligations by "immediately" starting the evaluation process after the parent requested services for the student, by issuing a comparable services plan after receipt of the student's medical report, by continuing its efforts to evaluate the student prior to the implementation date of the comparable services plan, and by offering the student a seat in a district specialized school within which to implement the comparable services plan (id. at p. 19).  According to the IHO, the district continued its efforts to evaluate the student, "to the extent allowed" by the parent, after providing the parent with the student's comparable services plan (id.).  The IHO also noted that, after the student had been transferred to a district specialized school in February 2024, the district continued to "offer to conduct evaluations" of the student (id. at p. 20).  After learning that the parent enrolled the student at iBrain, the district held a CSE meeting that included the iBrain director, the parent, the parent's attorney, and all of the student's related services providers at iBrain, as well as an iBrain teacher (id.).  As found by the IHO, the CSE "gave full consideration to the recommendations of all those participants, and developed an IEP that drew heavily on the reports provided by those eight [iBrain] staff, adopting all their findings and recommendations verbatim, and stopping short only of recommending [iBrain] by name, since it [wa]s not a [S]tate-approved non-public school" (id.).

The IHO also found that the time between the parent's initial referral of the student and the development of the student's IEP in August 2024 was "not due to any inaction or other violation" of the district's child-find obligation (IHO Decision at p. 20).  According to the IHO, "[a]t most, the interval was a procedural violation," and based on Second Circuit precedent, a parent was required to "'articulate how the procedural violation resulted in the . . . substantive inadequacy' of the education offered to the [student] 'or affected the decision-making process" (id.).  Here, the IHO found "no such violation or consequence in this case" (id.).

Based on the district's documentary evidence in the hearing record, the IHO found that the district offered a "'cogent and responsible explanation' for the decisions" of the CSE, and therefore, concluded that the district offered the student a FAPE "at all times during the 2023-24 and 2024-25 12-month school years" (IHO Decision at p. 20).  According to the IHO, in the "absence of any" parent testimony challenging the "history described in the SESIS log and the discussions at the IEP meeting, there [wa]s no basis to conclude that any procedural violation (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" (id., citing 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).

Turning to the program recommendations in the student's August 2024 IEP, the IHO noted that while it was "smaller and more supportive" than the program offered in the comparable services plan, this difference was not "evidence that the initial program did not provide a FAPE" (IHO Decision at p. 20).  Specifically, the IHO noted the district's obligation to place the student in the least restrictive environment (LRE), and that the comparable services plan was "appropriate based on the information available" at that time (id.).  Additionally, the IHO noted that when the parent "sought an IEP with more support" through her 10-day notice of unilateral placement, the district "timely developed" a "new program" that offered the student a FAPE (id.).  Overall, the IHO concluded that the district sustained its burden to establish that it offered the student a FAPE for the 2023-24 and 2024-25 school years (id. at p. 21).

Having found that the district offered the student a FAPE, the IHO nonetheless addressed whether iBrain was an appropriate unilateral placement for the student (see IHO Decision at pp. 21-24).  After reviewing and considering the evidence, the IHO first found that the June 2024 iBrain education plan, together with the April 2024 and July 2024 progress reports, reflected a "program with appropriate and measurable goals that, if implemented, [we]re reasonably tailored" to the student's needs (id. at p. 21).  More specifically, however, the IHO noted that the student's hearing services, vision services, and music therapy at iBrain—"while beyond what [wa]s required by [the s]tudent's diagnosis and not essential to a FAPE"—could "benefit" the student and "generally improve her ability to interact with her environment and benefit from instruction" (id. at p. 22).  Thus, the IHO found these services to be an "appropriate, if not essential, feature of the curriculum" at iBrain (id.).

With respect to the program at iBrain, the IHO noted that if a student received "related services on a push-in basis," the student could spend as much as three hours per day "with the classroom teacher" (IHO Decision at p. 22).  Evidence in the hearing record reflected that all students at iBrain began receiving related services on a pull-out basis, and the evidence did not indicate that the student in this case had transitioned to a "push-in schedule" (id.).  Based on the evidence, the IHO found that the student's program at iBrain consisted of "one hour per day of academic instruction, which include[d] literacy, math[ematics], and social skills"; according to the IHO, while this program "may have been appropriate in the very beginning when [iBrain] was ascertaining [the s]tudent's baselines of functional performance" from March 2024 through the conclusion of the 2023-24 school year, the IHO found it was not appropriate "on an ongoing basis" (id.).

Turning to iBrain's delivery of instruction to a student who was at home, the IHO noted that, while the evidence in the hearing record did not definitely establish whether it had ever been used with this student, it "was not appropriate" (IHO Decision at p. 22).[16]  According to the director's testimony, if a student could not attend iBrain in person, a paraprofessional went to the student's home, "where they used a laptop computer device with a Teams or Zoom link that enable[d] the [student] to see the teacher or service provider virtually, with 'no change to the student's schedule'" (id.).  However, the IHO indicated that, in light of this student's limited ability to "communicate or to even sustain gaze," this type of "virtual academic instruction [wa]s of little if any value" (id.).  Moreover, the IHO noted that because the student required individual, direct services from a "licensed therapist in all areas of related service, virtual service mediated by a paraprofessional [wa]s not appropriate, particularly for services that involve[d] physical modeling or support, or any specialized equipment or materials" (id.).  Additionally, the IHO noted that the hearing record was devoid of any evidence demonstrating "whether or how [the s]tudent may have received home services, nor any evidence of when she attended in person" (id.).  To the extent that the director testified that the student had not received home services, the IHO found this testimony to be uncorroborated because the hearing record was devoid of evidence such as "any class schedule, attendance records, session notes, or any contemporaneous record of delivery of related services" because iBrain did not "keep a record of when its paraprofessional staff [we]re required to work off-site, or even when its therapists [we]re at the school or on leave" (id. at pp. 22-23).  Although the director testified that attendance records could be generated, the IHO found that such "record would not be informative" because iBrain did not distinguish between whether a student received home services or attended in person on its attendance records, but instead, only marked entries on that record as a "Y" or "N" (id. at p. 23).  According to the IHO, iBrain only used "N" as an entry when the student had an "unexcused absence" and even if a student "miss[ed] a prolonged period" of school—such as an entire semester "'due to being hospitalized'"—iBrain did not "'count that against a student' for attendance purposes" (id.).

Next, the IHO reviewed evidence to determine whether the student made progress at iBrain (see IHO Decision at p. 23).  Without the parent's testimony or attendance records to establish that the student attended iBrain, the IHO turned to progress reports in the hearing record to analyze this issue (id.).  With respect to the July 2024 progress report, the IHO noted that the student received "benefit from the program up to that date" (id.).  The IHO also noted that the director testified that the student had made "'progress in skills across academic and related service domains'" at iBrain and he anticipated that the student would "'continue to build upon the progress she ha[d] made so long as she [wa]s provided with continuity in regard to her educational program'" (id.).  However, the IHO found the director's statement was conclusory and without any further elaboration in testimony (id.).  In addition, the IHO noted that the director did not describe "what progress" the student "may have made" during summer 2024 and the "following month, even though the next Quarterly Report should, presumably, have been generated" in or around October 2024 and "available for his review, even if not in time for pre-hearing disclosure" (id.).

Turning to the student's communication needs, the IHO found that the July 2024 progress report noted the student's recent introduction to an "'eye-gaze device,'" but at the impartial hearing—"[m]ore than three months later"—the director testified that the student was "'trialing an eye gaze device'" but failed to provide any other information about the student's "progress using that device" (IHO Decision at pp. 23-24).  Moreover, despite the June 2024 iBrain educational plan including a recommendation for vision education services—which, according to the IHO, "would seem an appropriate support for developing the skills necessary to use such a device"—the hearing record was devoid of evidence that the student was "receiving that service" (id. at p. 24).

As to the student's mobility needs, the IHO indicated that the June 2024 iBrain educational plan noted that the student would "'benefit from a customized wheelchair for functional mobility and as a positioning device'" (IHO Decision at p. 24).  However, despite also noting in the educational plan when the student began attending iBrain that the student had an appointment for a wheelchair and was expected to receive it soon, the director testified at the impartial hearing several months later that the student still had a nonmotorized wheelchair and was "'wheeled around'" (id.).  The IHO found that the hearing record lacked any evidence that the student used "any customized wheelchair; instead, the evidence [wa]s that she 'utilize[d] a stroller as the main form of functional mobility and positional device at school,' . . . , just as she did when she was seen for evaluation" by the district in January 2024 (id.).

Overall, the IHO found that, absent "credible testimony from a witness familiar" with the student, such as the parent or a direct provider, "or even credible evidence" of the student's attendance at iBrain, the evidence in the hearing record of the student's progress was "uncorroborated and unreliable" (IHO Decision at p. 24).  However, the IHO also found that, based on the "credible evidence" in the hearing record, iBrain could "provide related supports that could address [the s]tudent's unique needs and enable[d] [the s]tudent to derive educational benefits from academic instruction" (id.).  Nevertheless, the IHO concluded that the hearing record failed to contain sufficient evidence that the student was "being provided during any portion of the 12-month 2024-25 school year with either an academic curriculum or related services program designed to meet her unique needs" (id.).[17]  Therefore, the IHO found that, although the parent sustained her burden to establish the appropriateness of iBrain as the student's unilateral placement during the 2023-24 school year, the parent failed to sustain her burden to establish the appropriateness of iBrain as the student's unilateral placement for the 2024-25 school year (id.).

As the final factor of the Burlington/Carter analysis, the IHO examined equitable considerations (see IHO Decision at pp. 24-29).  Initially, the IHO found that the parent cooperated with the district and its efforts to evaluate the student following the referral in December 2023 (id. at p. 25).  The IHO noted that the district accommodated the student's hospitalization, and the evidence reflected that the district continued to communicate with the parent to arrange for evaluations of the student through early February 2024 and "officially transferred" the student to a specialized school on February 14, 2024 (id.).  According to the IHO, on the "very next day"—i.e., February 15, 2024—the student went to iBrain for an initial evaluation and enrolled at iBrain in March 2024 (id.).  The IHO noted that the director testified that iBrain's educational plan for the student was implemented beginning on March 25, 2024, without the district's awareness that the student had been unilaterally placed at iBrain (id.).  The IHO indicated that the district continued its attempts to schedule evaluations of the student, and she did not "fault" the district for the student's "apparent absence" from the specialized school given the student's history of absences (id.).  According to the IHO, the parent "ceased to be responsive or cooperative with the [d]istrict, a situation confirmed when the speech-language evaluation did not go forward as planned on [March 1, 2024] and [the p]arent did not respond to the [d]istrict's subsequent efforts to reschedule" (id.).

Next, the IHO found that, based on the director's testimony, iBrain had not ascertained whether the district had evaluated the student or provided the parent with any notice of programs or services prior to developing the student's iBrain educational plan (see IHO Decision at p. 25).[18]  Moreover, the IHO indicated that, although iBrain obtained a release from the parent for the student's educational records, it did not "use that authorization to gather any information" from the district, and the director had no knowledge of any district evaluations of the student (id.).  The IHO found that "this approach [wa]s designed to exclude and interrupt parents' collaboration" with the district (id.).  In addition, the IHO noted that, although the director testified that iBrain staff had accompanied the student to the district "Welcome Center" to register the student and obtain a district placement for her, the IHO questioned whether this event even took place, noting that any visit to the "Welcome Center" in February or March 2024 would have "alerted" iBrain that the student had already been registered and "referred for special education services, making it particularly problematic that there was no communication to the [district] from either [the p]arent or [iBrain] until June" (id. at pp. 25-26).

Based on the evidence in the hearing record, the IHO found that the parent's next communication with the district occurred when the parent's attorney sent the district a 10-day notice of unilateral placement, dated June 14, 2024 (see IHO Decision at p. 26).  However, the IHO also found that the parent's 10-day notice was not a "good faith effort to engage" with the district, noting that the information contained within the notice was "not an accurate reflection of the history of this case and appear[ed] to be no more than boilerplate designed to set the stage for a careless approval of the pendency position" that was later included in the parent's due process complaint notice, dated July 2, 2024 (id.).  Notwithstanding these inaccuracies, the IHO indicated that, upon its receipt, the district "resumed its efforts to complete" the student's evaluations and to hold a CSE meeting to develop an IEP (id.).  According to the IHO, on July 17, 2024, the district transferred this case to the "correct CSE, assisted by OATH in emails" that included the parent's attorney (id.).  On that same day, July 17, 2024, the parent "declined the CSE's offer to conduct an OT evaluation" (id.).

Next, the IHO noted that a CSE convened on August 21, 2024, to develop an IEP for the student, with the parent, the parent's attorney, and two translators in attendance (see IHO Decision at pp. 26-27).  According to the IHO, the CSE, in the absence of its own evaluations, developed the student's IEP by heavily relying on progress reports from iBrain (id. at p. 27).  The IHO noted that the August 2024 IEP referenced an implementation date of August 22, 2024, "in time for the September start of the 10-month 2024-25 school year," and after the CSE meeting, the parent did not provide the district with a 10-day notice of unilateral placement "alerting the [d]istrict that the IEP would not be accepted" (id.).  As a result, the district continued its efforts to schedule a classroom observation of the student and to arrange for the student's attendance in a specialized school (id.).  Additionally, the IHO found that, although the parent's attorney had argued at the prehearing conference that the district had not made a good faith effort to hold a resolution meeting, the district had taken steps to "provide genuine resolution" by holding a CSE meeting and developing an IEP for the student (id. at pp. 27-28).  The IHO also noted that any failure to hold a resolution meeting was a "procedural technicality with no substantive or equitable consequence" (id. at p. 28).

In weighing the equitable considerations, the IHO concluded that, "once [iBrain] entered the picture, the [iBrain] personnel and the [parent attorney's l]aw [f]irm took the lead in all [of the p]arent's interaction with the [district]" (IHO Decision at p. 28).  According to the IHO, "[t]his level of involvement was clearly in the interest of [iBrain], but was not clearly in the interest of [the s]tudent or [p]arent," and moreover, "[u]nder these circumstances, [the p]arent's absence from the [impartial] hearing [wa]s particularly conspicuous" (id.).

Next, the IHO determined that the hearing record lacked sufficient evidence to find that the parent had a financial obligation with regard to the student's attendance at iBrain for the 2023-24 or the 2024-25 school years (see IHO Decision at p. 28).  With respect to the 2023-24 school year, the IHO found the hearing record devoid of any evidence of a financial obligation, and lacked evidence of any payments made by the parent for the 2023-24 school year (id.).  With regard to the 2024-25 school year, the IHO determined that, absent any testimony by the parent, the parent's "purported signatures on both the tuition and transportation contracts for 2024-25 [were] unverified" (id.).  The IHO also expressed concern that the iBrain contract, which apportioned separate fees under its "'base tuition'" and "'Supplemental Tuition Fees,'" granted iBrain with "unfettered discretion to set fees beyond base tuition by programming [the s]tudent for related services with no documented schedule or session notes in evidence" (id. at pp. 28-29).

Finally, the IHO found that it would be inequitable to require the district to "fund services in the absence of evidence that the services [we]re actually received by the [s]tudent" (IHO Decision at p. 29).  Here, the IHO noted that, even if the hearing record included attendance records, iBrain's method of "record-keeping [we]re such that they would not establish actual delivery of any service" due to the generic use of "Y" to denote "in-school attendance, at-home or virtual delivery of services, and periods when no services at all [we]re received due to an 'excused' absence" (id.).  With regard to the transportation contract, the IHO found that the hearing record was devoid of any evidence that the parent made any payments or incurred any expense for a vehicle or adult support "on any given day" (id.).  The IHO noted that the parent could have provided testimony regarding the student's in-person attendance and transportation (id.).  For these reasons, the IHO concluded that equitable considerations did not weigh in favor of the parent's requested relief (id.).

Notwithstanding the IHO's findings, the IHO ordered the following relief: for the district to issue the parent a "site-specific School Location Letter," consistent with the August 2024 IEP, and to provide the student with transportation consistent with the August 2024 IEP to attend school in person (IHO Decision at p. 31).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred by finding that the district offered the student a FAPE for the 2023-24 and 2024-25 school years, that iBrain was not an appropriate unilateral placement for the student for the 2024-25 school year, and that equitable considerations did not weigh in favor of the parent's requested relief.  More specifically, the parent contends that the district failed to convene a CSE meeting to develop an IEP for the student for the 2023-24 school year and failed to timely convene a CSE meeting to develop an IEP for the 2024-25 school year.  In addition, the parent contends that the student's IEP failed to address her health needs and failed to include the "necessary support or accommodations to support" her health with respect to how it affected her academic and school performance.  Next, the parent argues that the IHO ignored that the district did not recommend transportation services for summer services for the 2023-24 and 2024-25 school years, and similarly ignored that the district did not recommend transportation accommodations, such as air conditioning or limited travel time.  The parent further argues that the IHO ignored the district's failure to issue a school location letter to the parent for the 2023-24 and 2024-25 school years, and erroneously relied on evidence in the hearing record as proof of the existence of school location letters for both school years.  With respect to the comparable services plan, the parent asserts that the IHO ignored the student's intensive management needs, which made the recommendation for a 12:1+(3:1) special class placement not appropriate.  The parent also asserts that the IHO disregarded the fact that the student was eligible to receive special education as a student with multiple disabilities, rather than as a student with a traumatic brain injury.[19]  With respect to the August 2024 IEP, the parent contends that the CSE failed to recommend critical related services, including vision education services, OT, and music therapy.  In addition, the parent argues that the district's failure to convene a CSE meeting for the 2023-24 school year and to timely convene a CSE meeting for the 2024-25 school year for the student violated its child-find obligations.

With respect to the IHO's determination that iBrain was not an appropriate unilateral placement for the student for the 2024-25 school year, the parent argues that the student's program for the 2024-25 school year was similar to the student's program at iBrain during the 2023-24 school year, which the IHO had found to be appropriate.  Next, the parent asserts that the student did not receive remote services, contradicting the IHO's finding that the hearing record lacked evidence that the student received remote services.  Additionally, the parent argues that the IHO erred by finding that the hearing record lacked credible evidence of the student's progress.

Turning to the IHO's finding on equitable considerations, the parent argues that she was not obligated to testify at the impartial hearing, and the contracts in the hearing record are sufficient evidence of her financial obligations for the services.  Additionally, the parent contends that it was unwarranted for the IHO to draw adverse inferences based on her not providing testimony at the impartial hearing.

Finally, the parent asserts that the IHO's interim decision on pendency, which found that iBrain was not the student's pendency placement, must be reversed.  As relief, the parent seeks an order directing the district to fund the costs of the student's tuition at iBrain for the 2023-24 and 2024-25 school years, as well as to fund the costs of the student's transportation services.  Alternatively, the parent notes that the matter could be remanded to the IHO to consider evidence "overlooked" with respect to whether the district offered the student a FAPE and to "further develop the [hearing] record" with respect to the appropriateness of iBrain and equitable considerations.

In an answer, the district generally argues to uphold the IHO's decision, noting that the IHO found the parent's sole witness—the director of special education at iBrain—was unreliable and not credible and that the parent has not challenged the IHO's credibility determination.[20]  As a cross-appeal, the district asserts that the IHO should have concluded that iBrain was not an appropriate unilateral placement for the student for the 2023-24 school year.  Finally, the district asserts that the IHO's interim decision on pendency was correct.

In a reply and answer to the district's cross-appeal, the parent generally reasserts arguments made 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]).[21]

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. 2023-24 School Year

The parent argues that the IHO erred by finding that the district offered the student a FAPE for the 2023-24 school year.  The district argues that the IHO erred by finding that iBrain was an appropriate unilateral placement for the 2023-24 school year.  With regard to equitable considerations, the parent contends that she was financially obligated to pay for the services, as evidenced by the contracts in the hearing record, and the hearing record lacks evidence that the parent's actions warrant a reduction or denial of tuition reimbursement.

The district argues that the IHO properly concluded that the parent was not entitled to an award of tuition reimbursement for the 2023-24 school year based on equitable grounds because, among other things, the parent failed to produce any contract that financially obligated her to iBrain for the costs of the student's tuition for the 2023-24 school year or to any entity for transportation for the 2023-24 school year.

In Burlington, the Court stated that "[p]arents who unilaterally withdraw their child from the public school and thereafter seek tuition reimbursement for the[ir] child's private placement do so at their own peril," because they bear the financial risk, both as to tuition and legal expense, and the burden of demonstrating the appropriateness of their relief (471 U.S. at 373-74).  Congress thereafter took action to emphasize the need for parents to be invested in the process of developing a public school placement for eligible students with disabilities by placing limitations on private school reimbursements under the IDEA (20 U.S.C. § 1412[a][10][iii]).  The statute "textually presupposes that the parents had incurred those costs" [Moonsammy v. Banks, 2024 WL 4277521, at *7 [S.D.N.Y. Sept. 23, 2024]).  This statutory construct is a significant deterrent to false or speculative claims (see Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 543 [2007] [Scalia, J., dissenting] [noting that "actions seeking reimbursement are less likely to be frivolous, since not many parents will be willing to lay out the money for private education without some solid reason to believe the FAPE was inadequate"]).

When the element of financial risk is removed entirely and the financial risk is borne entirely by unregulated private schools or agencies that have indirectly entered the fray in a very palpable way in anticipation of obtaining direct funding from the district, it has practical effects because parents begin seeking the best private placements possible with little consideration given to what the child needs for an appropriate placement as opposed to "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]).  As the First Circuit Court of Appeals noted, "[t]his financial risk is a sufficient deterrent to a hasty or ill-considered transfer" to private schooling without the consent of the school district (Town of Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 798 [1st Cir. 1984], aff'd, Burlington, 471 U.S. 359, 374 [1985] [noting the parents' risk when seeking reimbursement]; see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247[2009] [citing criteria for tuition reimbursement, as well as the requirement of parents' financial risk, as factors that keep "the incidence of private-school placement at public expense . . . quite small"]).  Further, proof of an actual financial risk being taken by parents tends to support a view that the costs of the contracted for program are reasonable, at least absent contrary evidence in the hearing record.

Regarding proof of financial risk, parents must come forward with evidence of their financial obligation and may not seeking funding based on "nothing more than their say-so" (Moonsammy v. Banks [Moonsammy II], 2025 WL 733254, at *8 [S.D.N.Y. Mar. 7, 2025]).  The Second Circuit has held that some blanks that the parties did not fill in in a written agreement would not render an entire contract void and indicated that in the case before it that "the contract's essential terms—namely, the educational services to be provided and the amount of tuition—were plainly set out in the written agreement, and we cannot agree that the contract, read as a whole, is so vague or indefinite as to make it unenforceable as a matter of law" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 458 [2d Cir. 2014]).  In New York, a party may agree to be bound to a contract even where a material term is left open but "there must be sufficient evidence that both parties intended that arrangement" and an objective means for supplying the missing terms (Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 93 N.Y.2d 584, 590 [1999]; 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91 [1991]).

Here, assuming without deciding that, even if the parent successfully overturned the IHO's FAPE determination for the 2023-24 school year and the evidence supported a finding that iBrain was an appropriate unilateral placement, the parent would not be entitled to an award of tuition reimbursement because the hearing record is devoid of evidence establishing that the parent was financially obligated to pay for services at iBrain for the 2023-24 school year.  The hearing record includes one enrollment contract, which pertains solely to the student's enrollment and attendance at iBrain for the 2024-25 school year (see Parent Ex. A-D at p. 1).  This is not the case where the contract at issue was missing essential terms, but rather, that the hearing record does not include any evidence of a contract between the parent and iBrain for the 2023-24 school year, or for that matter, for any transportation services for the 2023-24 school year (see generally Tr. pp. 1-175; Oct. 22, 2024 Tr. pp. 1-119; Oct. 28, 2024 Tr. pp. 120-46; Parent Exs. A-E; G; Dist. Exs. 1-7; IHO Exs. I-XVII).  In addition, the hearing record is devoid of any other evidence, documentary or testimonial, sufficient to establish that the parent was financially obligated to pay for services at iBrain during the 2023-24 school year.  Therefore, because the parent cannot sustain her burden to establish that she was financially obligated to pay for services at iBrain for the 2023-24 school year, there is no reason to determine whether the district offered the student a FAPE for the 2023-24 school year or whether iBrain was an appropriate unilateral placement for the 2023-24 school year.  For these reasons, there is no basis to disturb the IHO's overall conclusion denying the parent's request to be reimbursed for the costs of the student's attendance at iBrain for the 2023-24 school year.

B. 2024-25 School Year

The parent argues that the IHO erred by finding that the district offered the student a FAPE for the 2024-25 school year.  The parent asserts, in part, that the IHO's determination ignored the district's failure to have an IEP in place for the student at the start of the 12-month school year—that is, July 1, 2024—in reaching that determination.

The district argues that the IHO properly found that the district offered the student a FAPE for the 2024-25 school year.  More specifically, the district contends that the IHO correctly concluded that any delay in developing the student's IEP was no more than a procedural violation that did not rise to the level of a denial of a FAPE.

In finding that the district offered the student a FAPE for the 2024-25 school year, the IHO first indicated that any "length of time" between the initial referral of the student to the "final development of an IEP was not due to any inaction or other violation" by the district, including its child-find obligation (IHO Decision at p. 20).  According to the IHO, the district's delay in developing the student's IEP was "[a]t most," a procedural violation, and based on legal authority, a parent was required to "'articulate how a procedural violation resulted in the . . . substantive inadequacy' of the education offered to the child 'or affected the decision-making process" (id., citing M.W. v. New York City Dep't of Educ., 725 F.3d 131, 139 [2d Cir. 2013]).  Here, the IHO found "no such violation or consequence in this case" (IHO Decision at p. 20).  Additionally, the IHO found that, in the "absence of any testimony by [the p]arent to challenge the history described in the SESIS log and the discussions at the IEP meeting, there [wa]s no basis to conclude that any procedural violation (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" (id., citing 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).

Notably absent from the IHO's analysis—and similarly absent from the district's arguments supporting the IHO's finding—is how, if at all, the district's failure to have an IEP in place at the start of the school year factored into whether the district offered the student a FAPE for the 2024-25 school year.

The IDEA and State regulations require the CSE to meet "at least annually" to review and, if necessary, to revise a student's IEP (see 20 U.S.C. § 1414[d][4][A]; 34 CFR 300.324[b][1]; 8 NYCRR 200.4[f]); however, there is no requirement that an IEP be produced at a parent's demand (Cerra, 427 F.3d at 194).  Further, the regulations do not preclude additional CSE meetings, specifically prescribe when the CSE meeting should occur, or prevent later modification of an IEP during the school year through use of the procedures set forth for amending IEPs in the event a student progresses at a different rate than anticipated (20 U.S.C. § 1414[d][3][D], [F]; 8 NYCRR 200.4[f]-[g]).  The IDEA's implementing regulations and State regulations require that a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability (34 CFR 300.323[a]; 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 [S.D.N.Y. Aug. 23, 2012], aff'd, 530 Fed. App'x 81 [2d Cir. July 24, 2013]; B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 614 [E.D.N.Y. 2012]).[22]  As a matter of State law, the school year runs from July 1 through June 30 (see Educ. Law § 2[15]).  Failure to provide a finalized IEP before the beginning of the school year is a procedural violation that may result in a finding that the district failed to offer the student a FAPE (see Application of a Student with a Disability, Appeal No. 15-099 [finding that a district's failure to finalize an IEP until after start of school year contributed to a denial of FAPE despite evidence of the parties' extensive efforts to locate an appropriate placement]).

Based on a review of the evidence in the hearing record, it is clear that there was no IEP in effect at the beginning of the 2024-25 school year for the student (see 34 CFR 300.323[a]; 8 NYCRR 200.4[e][1][ii]).  The district bore the responsibility to comply with developing a completed IEP for the student and failed to locate and identify a placement for the student to attend school by the beginning of the school year and its failure to do so constitutes at least a procedural violation.  To be sure, the late development of an IEP for the student does not necessarily result in a per se denial of a FAPE, and while the IHO correctly pointed out that not all procedural violations result in a failure to offer a FAPE, she nonetheless failed to considering the degree to which the late development of the student's IEP in this matter may have caused a deprivation of educational benefits to the student (see 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).  Mitigating factors might be present, for example, if a CSE meeting occurred prior to the school year, at which the parents actively participated and were given "sufficient information to make a timely decision regarding the IEP" but the IEP was delivered or finalized after the school year began (see E.L. v. Bedford Cent. Sch. Dist., 2022 WL 3667189, at *16 [S.D.N.Y. Aug. 25, 2022], quoting K.M. v. New York City Dep't of Educ., 2015 WL 1442415, at *15 [S.D.N.Y. Mar. 30, 2015]).

Here, the evidence in the hearing record reflects that the district first contacted the parent on August 8, 2024, to schedule a CSE meeting for August 16, 2024, and the parent agreed to that date (see Dist. Ex. 7 at p. 6).  On August 9, 2024, the district sent the parent—as well as two individuals at iBrain, one of whom was the director —a notice for the upcoming CSE meeting by email (id. at p. 5).[23]  Thereafter, on August 15, 2024, the district's SESIS log indicates that "[u]pon beginning the initial meeting for [the student], . . . , the Deputy of Special Education was informed that the parent's advocate was unable to attend due to an emergency" and a "new date and time was requested by the parent" (id. at p. 3).  At that point, the CSE meeting was rescheduled for August 21, 2024, with the parent's agreement (id.).  According to the August 2024 IEP, the CSE recommended 12-month programming for the student and noted an IEP implementation date of August 22, 2024 (see Dist. Ex. 6 at pp. 1, 33).

In light of this evidence, it is undisputed that, while a CSE briefly met on August 15, 2024, the CSE met approximately one week later on August 21, 2024, to develop an IEP for the student for the 2024-25 school year (see Dist. Exs. 6 at p. 1, 38; 7 at pp. 3, 5-6).  It is also undisputed that the August 2024 CSE recommended 12-month programming for the student, and as a result, the student was without an IEP at the start of the 12-month, 2024-25 school year, and therefore, the student had been deprived of educational services and educational benefits for the entire summer 2024 (i.e., six weeks) (id. at p. 33; see Educ. Law § 2[15]).[24]  Accordingly, a review of the hearing record shows that, consistent with the parent's contention, the district did not have an IEP in place at the start of the 2024-25 school year for the student, and therefore, the district failed to offer the student a FAPE because this procedural violation deprived the student of educational benefits.  Consequently, the IHO's determination on this issue must be reversed.

C. Unilateral Placement

Having found that the district failed to offer the student a FAPE for the 2024-25 school year, the next inquiry focuses on whether iBrain was an appropriate unilateral placement for the student for the 2024-25 school year.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.  Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.  To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.  They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

1. The Student's Needs

While the student's needs are not in dispute, a review thereof facilitates the discussion of the issue to be resolved, namely, whether the parent sustained her burden to establish the appropriateness of the student's unilateral placement at iBrain for the 2024-25 school year.

According to the student's June 2024 iBrain plan, the student had received diagnoses of infantile cerebral palsy, acquired brain injury, muscle spasticity of arms, paralysis of bilateral lower extremities, and dysphagia (i.e., difficulty swallowing secondary to cerebral palsy) (see Parent Ex. B at pp. 1, 26).  In addition, it was noted that the student was both nonverbal and nonambulatory, she received a "[m]echanical [s]oft diet with swallow precautions" and therefore, she needed "close supervision during mealtimes to prevent aspiration" (id.).  Cognitively, the student demonstrated "environmental awareness by responding appropriately to her surroundings," and communicated through "vocalizations, particularly when prompted with yes [or] no inquiries" (id. at p. 1).  The iBrain plan noted that the student had an "affinity for music," which suggested a "developmental interest in auditory stimuli" (id.).  It was also noted that the student "demonstrate[d] cognitive recognition of certain elements within her environment, notably animals like bears and ducks, and urban structures"; she also recognized a "few colors, and her knowledge of numbers [wa]s described as extremely low" (id.).

With respect to the student's physical development and needs, the June 2024 iBrain plan indicated that the student required total assistance for self-care skills such as dressing, toileting, grooming, and feeding, as well as mobility transfers, and she used a stroller for mobility and needed a wheelchair for functional mobility and as a positioning device (see Parent Ex. B at pp. 2-4, 5).  The iBrain plan also indicated that the student's intensive management needs required a high degree of individualized attention in an 8:1+1 class environment, and the provision of an individual paraprofessional and school nurse to attend to her medical needs (id. at pp. 26-27, 46-47).

With respect to speech and language functioning, the June 2024 iBrain plan reported the student as nonverbal and having significant speech and language delays, with receptive language skills limited to understanding simple commands and recognizing some body parts and colors, and expressive language skill as the student primarily using facial expressions and vocalizations to communicate (see Parent Ex. B at pp. 1, 18, 20).  The iBrain plan reported the student could have good joint attention, sustained interpersonal eye gaze when the clinician talked to her, demonstrated a social smile during sessions, communicated through use of facial expressions and vocalizations primarily with yes or no inquiries, and could approximate "si" to indicate agreement (id. at pp. 1-2, 7, 18, 20).  As related to assistive technology, the iBrain plan reported the student used assistive technology throughout the school day for communication and had trialed an eye gaze high-tech speech generating device (id. at pp. 5, 17-18).

In the area of physical development, the June 2024 iBrain plan reported addressing passive range of motion to stretch the student's trunk and lower extremities and working on various positions, head and neck control, with future goals to attempt activities such as standing, ambulating with a gait trainer, and using an adapted bike (see Parent Ex. B at p. 13).  Sessions included adjusting the student's stroller chair, activity chair, pelvic and chest harness for appropriate fit, and working on soft mats to prevent injury (id. at p. 14).  According to the iBrain plan, the student required an appropriate wheelchair and ankle-foot orthoses with upcoming appointments needing completion prior to initiation of more weightbearing activities (id.).  As related to fine motor skills, the student required total assistance to demonstrate a grasp pattern, and had difficulty holding onto objects and releasing objects (id. at pp. 4-5).

2. Specially Designed Instruction

As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).  Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).

In finding that iBrain was an appropriate unilateral placement for the 2023-24 school year, the IHO indicated that the student's June 2024 iBrain plan together with an April 2024 iBrain progress report and a July 2024 iBrain progress report, "reflect[ed] a program with appropriate and measurable goals that, if implemented, [we]re reasonably tailored to [the s]tudent's individual needs" (IHO Decision at p. 21).  However, with respect to the 2024-25 school year, the IHO found that, although the hearing record established that the June 2024 iBrain plan could provide the student with related services and supports to address the student's needs and to enable her to derive educational benefit from academic instruction—or in other words, that iBrain was an appropriate unilateral placement—the hearing record, according to the IHO, lacked evidence of the student's attendance and the student's progress, and therefore, the IHO could not determine whether iBrain was implementing the special education program and related services in the June 2024 iBrain plan (id. at pp. 21-24).

The parent asserts that the hearing record contains sufficient evidence to conclude that iBrain provided the student with specially designed instruction to address her needs for the 2024-25 school year.  In addition, the parent contends that the IHO erred by focusing her analysis of the appropriateness of the unilateral placement on whether the hearing record contained evidence of the student's progress, rather than on whether iBrain's special education program was reasonably calculated to enable the student to make progress at the time the parent made the decision to unilaterally place the student at iBrain.[25]

In support of her burden to establish the appropriateness of iBrain as a unilateral placement—and specifically, whether iBrain provided the student with specially designed instruction to meet her needs—the parent presented both testimonial and documentary evidence at the impartial hearing.  Putting aside the director's testimony about the student's needs and her special education program at iBrain, which the IHO found was not credible, the hearing record otherwise contains sufficient documentary evidence to conclude that the special education program and services recommended in the June 2024 iBrain plan constituted specially designed instruction for the 2024-25 school year.  Additionally, it must be noted that, while iBrain's education plan or "IEP" may be helpful in determining what iBrain intended to provide to the student, it is not necessary for the parent to prove that iBrain adhered to the plan in order to meet her burden.  As a general matter, private institutions which are not State-approved to provide special education services to students with disabilities—such as iBrain—are not required to follow the same procedural process of developing their own written IEPs for students in the same way as public school districts are (Carter, 510 U.S. at 13-14), and, furthermore a unilateral placement is not mandated by the IDEA or State law to provide services in compliance with an IEP.  Thus, contrary to the IHO's finding, noncompliance with the privately-created iBrain education plan or "IEP" is not a basis, without more, for finding that iBrain was not an appropriate unilateral placement and for denying the parent's request for public funding of the unilateral placement.[26]

Evidence in the hearing record describes iBrain as a "private and highly specialized special education program" that was created for students who suffered from "acquired brain injuries or brain-based disorders" (Parent Ex. G ¶ 5).  The evidence also notes that iBrain provides students with 12-month programming and offers "all services during its extended school day, which runs from 8:30 a.m. to 5:00 p.m." (id.).  At the impartial hearing, the director testified that, consistent with these hours of operation, the student generally arrived at iBrain between 8:30 a.m. and 9:00 a.m. and left iBrain between 4:30 p.m. and 5:00 p.m., and he then briefly described the student's daily schedule at iBrain (see Tr. pp. 130, 132; Parent Ex. G ¶ 5).  Although the director could not provide any details about the student's academic courses at iBrain, he testified that the student spent "at least" one hour per day with the classroom teacher and could spend up to three hours a day with the classroom teacher (see Tr. pp. 133-34).  The director explained that, during the 2024-25 school year, the student was "educated in three domains," including mathematics, literacy, and social skills (Tr. p. 134).

According to the June 2024 iBrain plan the student received individual, direct academic instruction for at least 30 minutes a day with the support of her paraprofessional (see Parent Ex. B at p. 15).  During one session, time was "spent evaluating and building [the student's] knowledge of numbers, letters, remaining on task and counting numbers 1-15"; similarly, during reading comprehension instruction, the student would work on "answering 'yes [or] no' questions based on a text" read aloud to her (id.).  The iBrain plan indicated that the student used "books, videos and flashcards during instruction to work towards her academic goals" (id.).  The iBrain plan reported the student had shown "little progress in the area of reading comprehension and mathematics," noting that she had just recently joined the classroom (id.).  The June 2024 iBrain plan also reported the student demonstrated "persistence during all academic tasks and w[ould] work until she complete[d] that task" (id.).

The iBrain plan described the student as "sweet, social, [and] loving"; who "love[d] school and love[d] making friends"; who "often smile[d] when she [wa]s happy"; who "vocalize[d] with prompting when excited"; and who "greet[ed] her peers by reaching towards them or using vocalizations to try to say 'hello'" (Parent Ex. B at pp. 2, 23).  With regard to her classroom social participation at iBrain, the June 2024 iBrain plan revealed that the student "display[ed] strong social skills, readily reciprocating smiles and exhibiting friendliness in her interactions" (id. at p. 2).  The iBrain plan also revealed that, when the student entered the classroom, she responded "positively to peers and familiar adults as evidenced by her smiling" (id.).  The student reportedly socialized during "Morning and Afternoon meeting" group activities, and used "eye gaze, facial expressions and vocalizations to express herself" (id.).  According to the iBrain plan, the student required individual help from a paraprofessional to "assist her with hand-over assistance in activities and to help her point to choices when they [we]re presented to her visually" (id.).  Because the student had only been "in the classroom for a short period of time," it was noted that she had "made little progress in her socialization skills" and needed to work on "taking turns with peers during structured group activities" (id.).

The June 2024 iBrain plan further indicated that, with regard to classroom participation skills, the student benefitted from "engaging in a multi-sensory environment to increase her arousal, attention, and body awareness for participation in functional activities" (Parent Ex. B at p. 6).  The student required "frequent breaks," as well as individual "attention classroom activities," and benefitted from "extended time to aid in motor planning and cognitive processing during all activities" and "modeling" (id. at pp. 6-7).  The use of breaks allowed the student to "maintain attention and active engagement in classroom academic activities" (id. at p. 7).  In order to "work towards skill acquisition before generalizing to the classroom environment," the student required a "quiet, isolated environment," because the student became "easily distracted by added visual and auditory input" (id.).  The June 2024 iBrain plan noted that the student required the use of assistive technology for "optimal participation and accessibility" and needed "access to her communication device while participating in classroom activities to increase engagement in classroom activities and to increase individual autonomy" (id.).  As reported in the iBrain plan, the student was trialing various assistive technology, including "built up handles, slant board, contrast, angled utensils, [and] 3-D items" (id.).

At the impartial hearing, the director confirmed that the hearing record did not include a copy of the student's school schedule for "instruction and related services" for the 2024-25 school year (see Tr. pp. 135-36).  However, the evidence in the hearing record reflects that, based on the June 2024 iBrain plan, the student was recommended to attend a 12-month program consisting of an "8:1:1" classroom (extended day) during the 2024-25 school year and to receive the following related services: five 60-minute sessions per week of individual OT, five 60-minute sessions per week of individual PT, five 60-minute sessions per week of individual speech-language therapy, three 60-minute sessions per week of individual music therapy, two 60-minute sessions per week of individual hearing education services, and two 60-minute sessions per month of vision education services (consult), with the parent receiving one 60-minute session per month of parent counseling and training services (individual and group) (see Parent Ex. B at pp. 47-48).  According to the iBrain plan, the services were expected to begin on July 2, 2024 (id.).  In addition, the iBrain plan included recommendations for the services of a full-time, individual paraprofessional and school nurse services; assistive technology services and devices; and supports for school personnel on behalf of the student (id. at pp. 48-49).  The director testified that the "student's team" at iBrain made recommendations for the student's educational program based on the evaluations and the student's "health needs, cognitive level, and ability to communicate" (Tr. pp. 143-44).  He also noted that the recommendations were "reassessed every quarter" (Tr. p. 144).  In addition, the director testified that iBrain provided students with "[IEPs] geared towards improving functional skills appropriate to their cognitive, physical and developmental levels, through a collaborative and multidisciplinary approach," which, according to the director, "incorporate[d] the best practices from the medical, clinical, and educational fields" and which offered student instruction using the "most effective strategies from evidence-based practices" (Parent Ex. G ¶ 7).  The director explained that "these practices" included, but were not limited to, the following: "direct instruction, cognitive strategies, and compensatory education (using diagnostic-prescriptive approaches), behavioral management, physical rehabilitation, therapeutic intervention, social interaction, and transition services" (id.).

The director testified that the hearing record did not include any attendance records for the student for the 2024-25 school year (see Tr. pp. 148-49).  He did testify about iBrain's "Dashboard" system, which iBrain used to reflect attendance and to document when students received services, including related services (Oct. 22, 2024 Tr. pp. 15-19).  Generally, teachers and related service providers input information into Dashboard, and providers could include information about the student's performance for specific sessions (see Oct. 22, 2024 Tr. p. 19).  According to the director, Dashboard maintained information about a student's progress for academics and related services (id.).  Notably, however, the director explained that only attendance records could be printed from Dashboard (see Oct. 22, 2024 Tr. pp. 25-26).  He also testified that quarterly progress reports were also maintained on Dashboard (see Oct. 22, 2024 Tr. pp. 47-48).

The director also testified that, based upon his own knowledge, the student in this case did not receive home-based services (see Oct. 22, 2024 Tr. p. 40).[27] The director testified that the student attended a "small 8:1:1 class," with "six other students" (Tr. p. 134; Parent Ex. G ¶ 13).  The director also testified that the student "require[d] the assistance of a 1:1 paraprofessional throughout the day" (Parent Ex. G ¶ 14).  At the impartial hearing, the director described the student's general schedule, which included daily checks, activities of daily living skills, academics, and related services (see Tr. pp. 132-35).  In addition, the director testified that the student "made progress in skills across academic and related service domains in her educational program" at iBrain over the "past school year," and he anticipated that the student would "continue to build upon the progress she ha[d] made so long as she [wa]s provided with continuity in regard to her educational program" (Parent Ex. G ¶ 15).

As reflected briefly above, the June 2024 iBrain plan reported on the student's present levels of performance and needs in the following areas: cognition and academics, social development, speech-language and communication, oral motor and feeding, occupational and physical therapies, vision, assistive technology, hearing, and self-care skills, as well as her management needs (see Parent Ex. B at pp. 1-25).  Additionally, the June 2024 iBrain plan included a health care plan for the student that provided information on the student's diagnoses, mobility and equipment needs, medical history, diet and feeding needs, as well as the medical needs related to high risk falls, skincare, aspiration, and the need for alternative methods of communication as related to the student's needs related to cerebral palsy with cognitive and developmental delay and ineffective communication (id. at pp. 27-29).  The health care plan noted that the student needed paraprofessional support, school nurse support, and the support of related service providers (id. at pp. 26-29).

In addition, the student's June 2024 iBrain plan included annual goals and short-term objectives to address the student's identified needs in the areas of literacy, mathematics, cognition, social skills, vision education, hearing, assistive technology, speech-language therapy, PT, OT, music therapy, and parent counseling and training, as well as providing annual goals for the paraprofessional working in conjunction with the student and in consultation with the student's teachers, therapists, and school nursing staff (see Parent Ex. B at pp. 30-45).

Overall, the evidence supports a finding that the June 2024 iBrain plan, if delivered consistent with the recommendations in the plan, offered the student specially designed instruction to meet her needs.

D. Equitable Considerations

Having found that iBrain was an appropriate unilateral placement for the 2024-25 school year, the final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.  Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).  With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

1. Parent Cooperation

In the decision, the IHO found that while the parent had initially worked with the district and made the student available for evaluations, the parent "ceased to be responsive or cooperative" with the district around March 1, 2024, when the student's speech-language evaluation scheduled for that same day failed to proceed and the parent failed to respond to the district's attempts to reschedule the evaluation (see IHO Decision at pp. 24-25).  The IHO also faulted the parent for iBrain's failure to obtain information about the student from the district—such as evaluations that had been completed or other educational records—before iBrain developed its own educational plan for the student (id. at p. 25).  According to the IHO, iBrain's "approach" was calculated to interfere with the parent's collaboration with the district, and moreover, the "level of involvement" exhibited by the law firm representing the parent was not in the student's or parent's interest (id. at pp. 25-26, 28).

Initially, to the extent that the IHO found that the entries in the district's SESIS log demonstrated that the parent stopped cooperating with the district, the IHO's determination is not supported by the weight of the evidence in the hearing record.  Notably, although the IHO gave credit to the information in the SESIS log as an inference drawn due to the parent's absence at the impartial hearing, the IHO did not appear to consider all of the information within the SESIS log and relied on her own interpretation of certain entries in the SESIS log because the district did not present any witnesses to explain any of the entries .  For example, while the IHO interpreted the district's SESIS log as noting that a speech-language evaluation of the student had been scheduled for March 1, 2024, the SESIS log does not explain—nor did the IHO appear to consider—why the district then contacted the parent on March 9, 2024 to schedule a speech-language evaluation of the student (see Dist. Ex. 7 at p. 9).  In addition, although the SESIS log reflects that an appointment letter was sent on March 27, 2024, the evidence does not indicate what the appointment was for or to whom the letter was sent (id.).  A further review of the SESIS log reflects that, after March 1, 2024, the district only reached out to the parent on one occasion, on March 9, 2024, but thereafter, the SESIS log shows no attempts by the district to reach out to the parent in April, May, or June 2024 (id. at pp. 7-8).  And although the SESIS log indicates that the parent eventually declined the district's offer to conduct an OT evaluation of the student at the "Summer Per Session Site" in mid-July 2024, the IHO failed to note that the same SESIS log entry revealed that the parent had indicated that the OT evaluation would be conducted at the earliest availability and moreover—contrary to the IHO's finding—the student's speech-language evaluation was completed by the end of July 2024 and the parent attended the August 2024 CSE meeting to develop the student's IEP (id. at pp. 6-7; see Dist. Ex. 6 at p. 43; IHO Decision at p. 27).

Next, to the extent that the IHO found that iBrain's failure to obtain evaluative information about the student from the district was a calculated decision designed to interfere with the parent's cooperation with the district, and thus faulted the parent equitably for iBrain's failure to do so prior to developing its own education plan for the student, the IHO's determination is not legally supported and is not supported by the evidence in the hearing record.  First, although iBrain developed an education plan for the student, iBrain does not have the same statutory and regulatory obligation as the district to develop an IEP or an education plan for the student; consequently, iBrain has no corresponding mandate or other requirement to obtain any evaluative information from the district, or to evaluate the student, since a parent—or by extension, the unilateral placement selected by the parent—does not bear the responsibility for identifying the student's needs (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]).  Furthermore, at the impartial hearing, the director testified that iBrain preferred to rely on its own professionals to evaluate the student to determine the student's needs, and the hearing record does not include any evidence regarding how iBrain's evaluations of the student on one day in February 2024 either interfered with the district's evaluations or otherwise caused the parent to not cooperate with the district in that process (see Parent Ex. B at pp. 2, 11, 15, 18; see generally Dist. Ex. 7).

For these reasons, the weight of the evidence in the hearing record does not support the IHO's finding that the parent failed to cooperate with the district either through her own actions or through actions the IHO attributed to iBrain.

2. 10-Day Notice

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).  This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).  Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

On this point, the IHO found that the parent's 10-day notice of unilateral placement, while timely, was not done in a "good faith effort to engage" the district to discuss any objections the parent had with the student's IEP (IHO Decision at p. 26).  Instead, the IHO noted the inaccuracies within the letter, finding it "to be no more than boilerplate" and "designed to set the stage for a careless approval of the pendency position included" in the parent's subsequent due process complaint notice (id.).

The parent contends that she timely provided the district with a 10-day notice of unilateral placement "after making the decision" to enroll the student at iBrain, and the district's failure to hold a CSE meeting and develop an IEP prior to the start of the school year was in no way traceable to the parent's actions or inactions.  In its answer and cross-appeal, while the district argues that equitable considerations do not weigh in favor of the parent's requested relief, the district takes no position with respect to the issue of the parent's 10-day notice of unilateral placement (see Answer & Cr. App. ¶¶ 13-24).  At the impartial hearing, the district—in its opening statement—did not raise any concerns about the parent's 10-day notice of unilateral placement, but in its closing brief, asserted in a conclusory manner that the parent's 10-day notice of unilateral placement was insufficient because it was vague and did not raise all of the issues subsequently raised in the due process complaint notice (see Tr. pp. 42-45; IHO Ex. IX at p. 16).  As a result, the hearing record is not well developed on this issue.

The evidence in the hearing record includes a copy of the parent's 10-day notice of unilateral placement, dated June 14, 2024 (see Parent Ex. A-A at p. 1).  A review of the letter demonstrates that, consistent with the IHO's description, the 10-day notice contains inaccurate information, such as: references to the student's most recently held CSE meeting, when in fact, no CSE meeting had been held for the student until August 2024; references to a previously rejected assigned public school site; and references to requests for IEEs (compare Parent Ex. A-A at p. 1, with IHO Decision at p. 26).  However, while acknowledging that the parent's 10-day notice of unilateral placement inaccurately reflected the history of the present matter, it nonetheless provided the district with timely notice of the parent's intentions to unilaterally place the student at iBrain for the 2024-25 school year and to seek public funding for the costs of that placement, which fulfills the statutory purpose of a 10-day notice of unilateral placement.  Subsequently, a CSE meeting was held in late August 2024; however, the IHO noted that, following the August 2024 CSE meeting, the parent did not provide the district with another 10-day notice to alert the district that the "IEP would not be accepted" (IHO Decision at p. 27).  However, given the lack of discussion during the impartial hearing and the undeveloped state of the hearing record, at this juncture, it would be imprudent to reduce any award of district funding for the parent's unilateral placement at iBrain for the 2024-25 school year based solely on the parent's failure to provide the district with a second 10-day notice of unilateral placement after the August 2024 CSE meeting.  Consequently, to the extent that the IHO weighed the absence of a second 10-day notice against the parent with respect to equitable considerations, the IHO's finding was unwarranted and must be vacated.

3. Financial Obligation

Here, the parent contends that the IHO's adverse inferences drawn against her for not  testifying were unwarranted and should not have been "used to undermine the contractual agreements" entered into by the parent.  The district asserts that the enrollment contract and the transportation contract are "both insufficient and dubious."  The district points to the fact that neither contract is in the parent's native language, and the hearing record lacked evidence that the contracts had been explained to the parent.  In addition, the district asserts that the contracts were electronically signed, used a different email address than the parent used with the district, and misspelled the parent's name.  For these reasons, the district argues that "proof [that the p]arent actually understood and signed the contract[s] is hotly contested."  Next, the district asserts that the hearing record lacked evidence attesting to the student's attendance at iBrain, other than a progress report "authored days into the school year."

In Burlington, the Court stated that "[p]arents who unilaterally withdraw their child from the public school and thereafter seek tuition reimbursement for the[ir] child's private placement do so at their own peril," because they bear the financial risk, both as to tuition and legal expense, and the burden of demonstrating the appropriateness of their relief (471 U.S. at 373-74).  Congress thereafter took action to emphasize the need for parents to be invested in the process of developing a public school placement for eligible students with disabilities by placing limitations on private school reimbursements under the IDEA (20 U.S.C. § 1412[a][10][iii]).  The statute "textually presupposes that the parents had incurred those costs" [Moonsammy v. Banks, 2024 WL 4277521, at *7 [S.D.N.Y. Sept. 23, 2024]).  This statutory construct is a significant deterrent to false or speculative claims (see Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 543 [2007] [Scalia, J., dissenting] [noting that "actions seeking reimbursement are less likely to be frivolous, since not many parents will be willing to lay out the money for private education without some solid reason to believe the FAPE was inadequate"]).

When the element of financial risk is removed entirely and the financial risk is borne entirely by unregulated private schools or agencies that have indirectly entered the fray in a very palpable way in anticipation of obtaining direct funding from the district, it has practical effects because parents begin seeking the best private placements possible with little consideration given to what the child needs for an appropriate placement as opposed to "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]).  As the First Circuit Court of Appeals noted, "[t]his financial risk is a sufficient deterrent to a hasty or ill-considered transfer" to private schooling without the consent of the school district (Town of Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 798 [1st Cir. 1984], aff'd, Burlington, 471 U.S. 359, 374 [1985] [noting the parents' risk when seeking reimbursement]; see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247[2009] [citing criteria for tuition reimbursement, as well as the requirement of parents' financial risk, as factors that keep "the incidence of private-school placement at public expense . . . quite small"]).  Further, proof of an actual financial risk being taken by parents tends to support a view that the costs of the contracted for program are reasonable, at least absent contrary evidence in the hearing record.

Regarding proof of financial risk, parents must come forward with evidence of their financial obligation and may not seeking funding based on "nothing more than their say-so" (Moonsammy v. Banks [Moonsammy II], 2025 WL 733254, at *8 [S.D.N.Y. Mar. 7, 2025]).  The Second Circuit has held that some blanks that the parties did not fill in in a written agreement would not render an entire contract void and indicated that in the case before it that "the contract's essential terms—namely, the educational services to be provided and the amount of tuition—were plainly set out in the written agreement, and we cannot agree that the contract, read as a whole, is so vague or indefinite as to make it unenforceable as a matter of law" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 458 [2d Cir. 2014]).  In New York, a party may agree to be bound to a contract even where a material term is left open but "there must be sufficient evidence that both parties intended that arrangement" and an objective means for supplying the missing terms (Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 93 N.Y.2d 584, 590 [1999]; 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91 [1991]).

With regard to the 2024-25 school year, the hearing record includes a copy of the iBrain enrollment contract, as well as a copy of the Sisters Travel transportation contract with Sisters Travel (see generally Parent Exs. A-D; A-E).  As a result of the parent's absence from the impartial hearing and withdrawal of her affidavit testimony, the IHO drew several inferences, one of which concerned the parent's purported signatures on both the enrollment contract and the transportation contract (see IHO Decision at pp. 8-10).  More specifically, the IHO did not "credit the authenticity of the signatures" on either contract, notwithstanding the proffered signature certificates, and stated concerns about the parent's email address used in connection with the contracts, which, according to the IHO, included misspellings of the parent's name and the timing of its initial use (id. at p. 10).  At the impartial hearing, the director confirmed that parents were required to execute an enrollment contract with iBrain in order to enroll the student at iBrain (see Oct. 22, 2024 Tr. p. 29).  He also acknowledged that he did not "work with contracts or tuition," and therefore, he did not know whether any "exceptions" existed with regard to a "parent signing an enrollment contract" (id.).  However, other than the director's testimony on these specific points, the district's attorney did not pursue any other issues related to the enrollment contract or transportation contract at the impartial hearing, either through cross-examination of the director or otherwise.

Consistent with the IHO's decision, a review of the enrollment contract and transportation contract raises certain concerns.  Primarily, a comparison of the contracts reflects that, although both contracts use the same name for the parent (i.e., "client"), neither the signature on the enrollment contract nor the signature on the transportation contract fully conforms to that name used to identify the parent as the client (see Parent Exs. A-D at pp. 1, 6; A-E at pp. 1, 6).  Had the parent testified at the impartial hearing, perhaps she could have explained the signatures on the contracts.  However, a review of the district's evidence reveals similar issues with the parent's name.  For example, the individual identified as the parent in the mailing address on the December 2023 prior written notice does not fully conform to the name of the parent identified in the January 2024 social history (compare Dist. Ex. 1 at p. 3, with Dist. Ex. 3 at p. 1).  However, the name of the parent identified in the January 2024 social history matches, in part, the parent's signature on the enrollment contract (compare Dist. Ex. 3 at p. 1, with Parent Ex. A-D at pp. 1, 6).  Within the January 2024 psychoeducational evaluation of the student, the district appears to have referred to the parent with three different names (see Dist. Ex. 4 at pp. 1, 3).  However, the IHO did not express similar concerns about the district's evidence in this regard.

In addition to the IHO's concerns about the signatures on the enrollment and transportation contracts, the IHO heavily relied on what she characterized as the absence of reliable evidence that iBrain was actually implementing the June 2024 iBrain plan and delivering services to the student.  Closely tethered to this issue was, therefore, whether the student was actually attending iBrain during the 2024-25 school year.  However, questions about the student's attendance at iBrain only arose after the parent's attorney opted to not present the parent as a witness.  Notably, when the district's attorney elaborated on the reasons for requiring the parent to appear at the impartial hearing, she pointed to what she characterized as "inconsistencies," but did not indicate any issues related to either the enrollment contract or the transportation contract (see Oct. 22, 2024 Tr. pp. 97-100).  The district's attorney then bluntly stated that she did not believe that the student was "actually attending iBrain," notwithstanding that the director had testified that the student was attending iBrain and that he had seen her on the day that he had testified (Oct. 22, 2024 Tr. pp. 80, 101-02; Parent Ex. G ¶ 13).[28]  Additionally, the district's attorney noted that, based on how iBrain took attendance, there was no way to know for certain if the student was "actually attending" (Oct. 22, 2024 Tr. p. 101).  She further referenced concerns about the student's attendance at iBrain based on the family experiencing homelessness, which, without the parent's testimony, raised concerns with the district's attorney about "who or what [the district was] actually paying for" in this instance (Oct. 22, 2024 Tr. pp. 101-02).  In response, the parent's attorney reminded the district's attorney that the director had just testified on that day that the student was at iBrain "today" (Oct. 22, 2024 Tr. p. 102).  The IHO indicated that she had been tempted to ask the director to show the student on video conference, but noted that, "without anyone to verify" the student's identity, they had "no proof of identity" (id.).

However, the colloquy among the IHO and the parties' attorneys is not evidence, but in this instance, appeared to fortify what can only be referred to as the IHO's suspicions about iBrain and the student's attendance in this matter.  And while it is not inappropriate to raise questions about the implementation of the iBrain plan and the student's attendance at iBrain, the hearing record must contain evidence—and not conjecture—about these issues in order to support conclusions drawn therefrom.  Admittedly, it is troubling that iBrain's system of attendance appears to purposefully evade any way to conclude that a student may or may not be attending iBrain either in person or remotely or whether iBrain is delivering services to the student, and given that the enrollment contract and transportation contract require payment regardless of attendance under the terms of the contracts, it was inherently reasonable for the IHO to have reservations about awarding funding in light of iBrain's questionable practices.  However, having found that the parent cooperated with the district and the parent submitted timely 10-day notice to the district of unilateral placement, I find an insufficient basis under the circumstances of this case to reduce or deny an award of tuition due to speculative concerns about the student's attendance and the parent's differing signatures on the contracts.

E. Pendency

The parent asserts that the IHO erred by finding that iBrain was not the student's pendency placement because the parent unilaterally removed the student from the public school.  The parent argues that, for the purpose of pendency, iBrain was the student's "operative placement," and on this basis, seeks to reverse the IHO's decision on pendency.  The district argues to uphold the IHO's decision on pendency in its entirety.

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[29]  Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).  The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).  A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]).  The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906).  Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).  Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171).  However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).  Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).

Here, it is undisputed that the student had been enrolled in district public schools since November 2023 (see Dist. Exs. 3 at p. 1; 4 at p. 1; 5).  It is also undisputed that the parent unilaterally placed the student at iBrain in March 2024, without notice to the district and without any prior administrative proceedings establishing iBrain as the student's pendency placement.  Nor does the parent attempt to argue such.  Instead, the parent argues that iBrain was the student's "operative placement" for purposes of pendency and that the district is therefore responsible to fund it in the first instance.  Contrary to the parent's arguments, the operative placement test is not applicable in these circumstances and the parent's unilateral enrollment of the student at iBrain—a placement that the district has not agreed to and which has not been found appropriate in any administrative proceeding—before the filing of the due process complaint notice did not change pendency (Ventura de Paulino, 959 F.3d at 536).  In declining to apply "operative placement" as requested by the parents in Ventura de Paulino, the Second Circuit Court stated that:

It bears recalling that the term "operative placement" has its origin in cases where the school district attempts to move the child to a new school without the parents' consent, or where there is no previously implemented IEP so that the current placement provided by the school district is considered to be the pendency placement for purposes of the stay-put provision.

(Ventura de Paulino, 959 F.3d at 536 [internal footnotes omitted]).  As to the latter circumstance, since the district did not arrange for or agree to the student's placement at iBrain, it was not a placement provided by the district as described by the Second Circuit.  Moreover, as authority for the circumstance described, the Second Circuit cited Thomas v. Cincinnati Board of Education, 918 F.2d 618, 625-26 (6th Cir. 1990), which determined a student's private home instruction constituted pendency rather than the student's initial unimplemented IEP (see Ventura de Paulino, 959 F.3d at 536 n.72).  However, as explained by the Court itself, the Sixth Circuit's decision in Thomas regarding the "operative placement" test was abrogated by the subsequent promulgation of the federal regulations governing the IDEA (N.W. v. Boone Cty. Bd. of Educ., 763 F.3d 611, 618 [6th Cir. 2014] ["The Thomas court's approach may have been correct in 1990, but the Department of Education's promulgation of § 300.116 renders that interpretation obsolete"]).

The parent in this matter may have preferred to unilaterally place her daughter at iBrain instead of availing herself of the option of placing her daughter in the district's recommended programming during the pendency of the proceedings, which she was free to do, but she may not recoup such expenses for private schooling on a pendency theory.  Accordingly, I find no basis to disturb the IHO's pendency finding.

VII. Conclusion

The parent has not demonstrated that she had a financial obligation to pay for the costs of the student's services at iBrain for the 2023-24 school year and therefore there is an insufficient basis to reverse the IHO's determination that denied her request to be reimbursed for the costs of the student's attendance at iBrain for the 2023-24 school year.

Regarding the 2024-25 school year, the hearing record supports a finding that the district failed to offer the student a FAPE, that iBrain was an appropriate unilateral placement, and that equitable considerations weigh in favor of the parent's request for tuition and transportation funding.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision, dated January 27, 2025, is modified by reversing those portions which found the district offered the student a FAPE, that iBrain was not an appropriate unilateral placement, and that equitable considerations warranted a denial of any direct tuition and transportation funding for the 2024-25 school year; and

IT IS FURTHER ORDERED that the district directly fund the costs of the student's tuition at iBrain and transportation expenses for the 2024-25 school year in accordance with the parent's enrollment and transportation agreements.