I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which determined that the educational program respondent's (the district's) Committee on Special Education (CSE) had recommended for her son for a portion of the 2024-25 school year was appropriate and which denied her request for district funding of her son's tuition for the International Academy for the Brain (iBrain) for the month of June 2025.  The district cross-appeals from the IHO's denial of its motion to dismiss the parent's claims.  The appeal must be dismissed.  The cross-appeal must be sustained.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The student has been the subject of prior State-level administrative appeals regarding the 2023-24 and 2024-25 school yethat mattertion of a Student with a Disability, Appeal No. 25-124; Application of a Student with a Disability, Appeal No. 24-486).[1]  The parties' familiarity with those matters is presumed and, therefore, the student's educational history and facts and procedural history underlying those matter will not be recited here except as relevant to the issues presented.

Briefly, the student is non-verbal, non-ambulatory, and has received several diagnoses including a rare syndrome, epileptic encephalopathy, global developmental delay, cortical visual impairment, and congenital heart disease (Parent Ex. B at p. 1).  The student began attending iBrain for the 2023-24 school year (Parent Ex. A at p. 3).[2]

The hearing record reflects that a CSE convened on May 30, 2024, and developed an IEP for the student with a projected implementation date of June 10, 2024 (Parent Ex. A. at p. 4; IHO Ex. I at p. 10).[3]  In a letter, dated June 14, 2024, the parent, through her attorney, informed the district of her disagreement with the most recent IEP developed for the student and her intention to unilaterally place the student at iBrain for the 2024-25 school year (Parent Ex. A-A).  On June 19, 2024, the parent entered into an annual service agreement for Sisters Travel and Transportation Services, LLC (Sisters) to provide special transportation services for the student to travel to and from iBrain for the period of July 2, 2024 through June 27, 2025 (Parent Ex. A-E).  Also on June 19, 2024, the parent entered into an annual service agreement with B&H Health Care Services, Inc. for 1:1 private nursing services during the school day, as well as during transportation to and from school, for the period of July 2, 2024 through June 27, 2025 (Parent Ex. A-F).  On June 25, 2024, the parent executed an enrollment contract with iBrain for the student's attendance for the 2024-25 extended school year, beginning on July 2, 2024 and ending on June 27, 2025 (Parent Ex. A-D at pp. 1-7).

The appropriateness of the programming recommended in the May 2024 IEP and the parent's request for funding for the student's attendance at iBrain for the 2024-25 school, as well as the costs of transportation and nursing services, were the subject of a prior impartial hearing and State-level administrative review (the first 2024-25 proceeding) (Application of a Student with a Disability, Appeal No. 25-124).  In particular, in a due process complaint notice, dated July 2, 2024, the parent alleged that the district failed to offer the student with a free appropriate public education (FAPE) for the 12-month 2024-25 school year (Dist. Ex. 1 at p. 30).  In a decision dated January 14, 2025, an IHO (the prior IHO) found that the district offered the student a FAPE for the 2024-25 school year, that iBrain was not an appropriate unilateral placement, and that equitable considerations would have supported a reduction in any relief granted the parent if the district had denied the student a FAPE (Dist. Ex. 1 at pp. 17-20).  The parent appealed that decision, and, on November 20, 2025, an SRO upheld the prior IHO's decision that the district offered the student a FAPE for the 12-month 2024-25 school year (Application of a Student with a Disability, Appeal No. 25-124).

On May 19, 2025, a CSE convened to conduct the student's annual review and developed an IEP for the student with a projected implementation date of June 2, 2025 (Parent Ex. C at p. 1).  Finding the student remained eligible for special education as a student with a traumatic brain injury, the May 2025 CSE recommended a 12-month program consisting of a 12:1+(3:1) special class placement for 35 periods per week and adapted physical education for three periods per week in a district specialized school, together with four 60-minute sessions per week of individual occupational therapy (OT); five 60-minute sessions per week of individual physical therapy (PT); four 60-minute sessions per week of individual speech-language therapy; two 60-minute sessions per week of individual vision education services; full-time individual school nurse services; full-time individual paraprofessional services for health ambulation, safety, and feeding; one 60-minute session of individual assistive technology services per week; and assistive technology devices consisting of switches throughout the day for use in school and at home (Parent Ex. C at pp. 1, 57-59, 63).[4]  In addition, the May 2025 CSE recommended one 60-minute session per month of group parent counseling and training (id. at p. 57). The IEP noted that the student would receive the same program and services for the 12-month portion of the school year (id. at pp. 58-59).  Further, the May 2025 CSE recommended special transportation accommodations and services for the student, including transportation from the closest safe curb location to school, individual nursing services, a lift bus, use of a wheelchair, limited travel time, a route with fewer students, and climate control (see id. at pp. 62-63). The May 2025 CSE did not have an updated psychoeducational evaluation for the student, though one was underway, because the student's absences impacted the evaluation's completion (Dist. Ex. 14 at p. 4).

On June 11, 2025, after the updated evaluation was complete, the district sent notice to the parent of a second CSE meeting, scheduled to occur on June 24, 2025 (see Dist. Ex. 9 at p. 4; see also Dist. Ex. 10 at p. 1).

A. Due Process Complaint Notice and Subsequent Events

By due process complaint notice, dated June 12, 2025, the parent alleged that the district denied the student a FAPE for the 12-month 2024-25 school year (Parent Ex. A).[5]  Initially, the parent requested a finding that the student's stay put placement during the pendency of the proceedings consisted of direct payment of tuition, related services, and transportation related to the student's attendance at iBrain (id. at p. 2).

With respect to the 2024-25 school year, the parent claimed the district failed to provide the parent with necessary notices, failed to conduct necessary evaluations, and failed to adequately address the parent's concerns in developing the May 2025 IEP (Parent Ex. A at pp. 5-8).  As for the May 2025 IEP, the parent alleged it failed to address the student's unique needs, failed to offer sufficient supports and services (e.g. music therapy, assistive technology, and supports for school personnel), and did not recommend an appropriate class size (id. at pp. 6-8).  The parent also alleged that the district had not identified an appropriate school location for the student to attend for the 2024-25 school year, raising concerns about district specialized schools generally as well as with a school identified in a June 2024 school location letter (id. at pp. 6-7).  For relief, the parent sought district funding of the student's placement at iBrain for the 12-month 2024-25 school year, including the costs for all tuition, related services, transportation, and nursing services provided (id. at p. 9).

On June 17, 2025, the district submitted a response generally contesting parent's claims and advising of defenses the district intended to pursue at the impartial hearing (Due Process Response).

The CSE reconvened on June 24, 2025 and reviewed the psychoeducational evaluation and an assistive technology trial report (Dist. Exs. 15 at p. 1; 17 ¶ 7).  The June 2025 CSE's programmatic recommendations did not differ from those of the May 2025 CSE (compare Dist. Ex. 5 at pp. 60-62, with Parent Ex. C at pp. 57-59).  On June 25, 2025, the district sent the parent a prior written notice and a school location letter summarizing the final recommendations of the May and June 2025 CSEs and notifying the parent of the particular school location to which the district assigned the student to attend to receive the recommended programming and services (Dist. Exs. 6 at pp. 1-14; 17 ¶ 17).

B. Impartial Hearing and Impartial Hearing Officer Decisions

An IHO (the IHO) was appointed from the Office of Administrative Trials and Hearings (OATH) (see IHO Decision at p. 3).  On June 25, 2025, the district filed a motion to dismiss the due process complaint, alleging in relevant part that the parent's request for reimbursement for the expense of the student's unilateral placement at iBrain for the 2024-25 school year was barred and subject to dismissal pursuant to the doctrine of res judicata (Dist. Ex. 1).  The parent filed a memorandum of law in opposition to the district's motion to dismiss on July 2, 2025 (IHO Ex. I).  The IHO convened a prehearing conference with the parties on July 14, 2025 (see Tr. pp. 1-13).  The parties submitted supplemental briefing pursuant to the IHO's request on the issue of whether the prior IHO's decision governed the entire 2024-25 school year or whether the May 2025 IEP with its projected implementation date of June 2, 2025 entitled the parent to file a new due process complaint notice relating to the same school year (IHO Exs. II; III at pp. 1-2; Dist. Ex. 2).  On July 21, 2025, the IHO notified the parties that she was denying the district's motion to dismiss, reasoning that the new IEP with a projected implementation date during the 2024-25 school year "created a new claim" for the parent (Dist. Ex. 3).  However, the IHO stated that the impartial hearing would be limited to the period of June 2, 2025 through June 30, 2025 (id.).

The parties also submitted briefs to the IHO on the issue of the student's stay put placement during the pendency of the proceedings (IHO Ex. V; Dist. Ex. 4; see IHO Ex. IV at pp. 2-4).  In an interim decision, dated July 30, 2025, the IHO found that the SRO's decision in Appeal No. 24-486 formed the basis for the student's pendency placement and consisted of the student's attendance at iBrain on a 12-month basis with transportation provided by Sisters Travel and private nursing services (Interim IHO Decision; IHO Ex. IV at p. 1).  The IHO rejected the district's position that an IEP from 2023 formed the basis of pendency "since the Paren[t]s assert their continued disagreement with the [district's] IEPs" (IHO Ex. IV at p. 1).[6]

The impartial hearing convened on August 6, 2025 and concluded on August 14, 2025 after two days of proceedings (see Aug. 6, 2025 Tr. pp. 14-73; Aug. 14, 2025 Tr. pp. 14-84).[7]  The district's request that the parent appear at the impartial hearing to testify was discussed during the prehearing conference and impartial hearing, as well as through a motion and request for a subpoena (Tr. pp. 10-11; Aug. 6, 2025 Tr. pp. 68-70; IHO Ex. VI-IX).  On August 7, 2025, the IHO issued the district's requested subpoena to compel the parent to appear and testify at the August 14, 2025 hearing date and warned that failure to appear would result in an adverse inference being drawn against the parent (IHO Exs. VII at p. 1; VIII).  Despite the subpoena, the parent did not appear to testify at the impartial hearing (see Aug. 14, 2025 Tr. pp. 16-18).

In a decision dated August 26, 2025, the IHO found the district offered the student FAPE for the relevant portion of the 2024-25 school year (i.e. June 2, 2025 through June 30, 2025) and dismissed the parent's claims (IHO Decision at pp. 9-10).  The IHO found that the district convened timely CSE meetings, developed an IEP tailored to the student's unique needs, and issued a timely prior written notice explaining the CSE's placement decisions, all of which the IHO found supported a finding that meaningful educational benefit was offered to the student and that neither the student's nor the parent's rights were significantly impeded by any procedural failings by the district (IHO Decision at pp. 9-10).  In addition, the IHO took a negative inference against the parent for declining to testify in support of her procedural claims (for example, not receiving the prior written notice and school location letter) (id. at p. 9 n.6).  The IHO credited the school psychologist's testimony as to the appropriateness of the CSE's recommendations, particularly in terms of the recommended classroom setting, related services, and supports (id. at pp. 9-10).  The IHO declined to address appropriateness of the unilateral placement at iBrain or the equitable considerations given the finding that a FAPE was offered (id. at p. 10).

IV. Appeal for State-Level Review

The parent appeals, arguing that the IHO erred in finding that the alleged procedural violations by the district did not rise to the level of a denial of FAPE and in finding that the district offered the student a substantively appropriate program for June 2025.  The parents contend that the IHO erred by finding that the district sent her a timely prior written notice and school location letter, alleging that the district did not establish that the documents in evidence were sent to the parents. Additionally, the parent alleges that, even if the district sent the prior written notice and school location letter, they bore the date June 25, 2025, which fell "three weeks after the IEP went into effect," and, therefore, the notices were untimely.  The parent further contends that the timing of the school location letter denied her right to obtain relevant and timely information about the assigned school location.  With respect to the May 2025 IEP, the parent argues that the IHO erred in finding it appropriate because it failed to recommend a 6:1+1 class size, music therapy, or an extended school day, which the parent claims were necessary for the student to make progress academically.  The parent also contends that the IHO erred in failing to address whether the student's unilateral placement at iBrain was appropriate and whether the equitable considerations weighed in favor of the parent's requested relief.

In an answer and cross-appeal, the district responds to the parent's arguments, argues that the IHO correctly found that the district offered the student a FAPE for June 2025, seeks dismissal of the appeal for failure to comply with the practice regulations, and alleges that the IHO erred by failing to grant the district's motion to dismiss the parent's due process complaint notice.[8]

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

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[9]

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

As a threshold issue, it must be determined whether the IHO should have dismissed the parent's claims.  The district challenges the IHO's determination that development of the May 2025 IEP revived the parent's right to seek reimbursement for even a portion of the student's 2024-25 unilateral placement at iBrain.  Specifically, the district alleges that the parent's challenge to the May 2024 IEP in the first 2024-25 proceeding closed the door to any other claims by the parent for funding of the student's 2024-25 unilateral placement, including but not limited to the period between the projected date of implementation of the May 2025 IEP through the end of the 2024-25 school year.

It is well-established that the doctrine of res judicata and the related doctrine of collateral estoppel apply to administrative proceedings when the agency acts in a judicial capacity (see K.C. v. Chappaqua Cent. Sch. Dist., 2017 WL 2417019, at *6 [S.D.N.Y. June 2, 2017]; K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012]; Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 554-55 [S.D.N.Y. 2010]; Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *6 [N.D.N.Y. Dec. 19. 2006]).  The doctrine of res judicata (or claim preclusion) "precludes parties from relitigating issues that were or could have been raised in a prior proceeding" (K.B., 2012 WL 234392, at *4; see Perez v. Danbury Hosp., 347 F.3d 419, 426 [2d Cir. 2003]; Murphy v. Gallagher, 761 F.2d 878, 879 [2d Cir. 1985]; Grenon, 2006 WL 3751450, at *6).  Res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same parties or those in privity with the parties; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding (see K.B., 2012 WL 234392, at *4; Grenon, 2006 WL 3751450, at *6).  Claims that could have been raised are described as those that "emerge from the same 'nucleus of operative fact' as any claim actually asserted" in the prior adjudication (Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 517 Fed. App'x 11, 12 [2d Cir. Apr. 1, 2013]).

The district's reliance on the doctrine of res judicata is misplaced.  The claims in the June 2025 due process complaint notice do not emerge from the same nucleus of operative fact as any claim asserted in the first 2024-25 proceeding.  The due process complaint notice underlying the first 2024-25 proceeding challenged the appropriateness of the May 2024 IEP, whereas the June 2025 IEP in the present matter challenged the May 2025 IEP (compare Dist. Ex. 1 at pp. 30-39, with Parent Ex. A).

While the parent's claims may not be barred by res judicata, the parent cannot obtain tuition funding from the district for any portion of the 2024-25 school year based on her disagreement with the May 2025 IEP.  The Second Circuit has made clear that parents are entitled to rely on an IEP "as written when they decide to [unilaterally] place" their child (Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 173 [2d Cir. 2021]; see R.E., 694 F.3d at 187-88 ["At the time the parents must decide whether to make a unilateral placement . . . [t]he appropriate inquiry is into the nature of the program actually offered"]).[10]  Thus, "a court or hearing officer may order a school district to reimburse parents for the cost of unilaterally enrolling their child in a private school ''if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment'" and an impartial hearing "does not examine the IEP as amended following the parents' due process complaint" (Bd. of Educ. of Yorktown Cent. Sch. Dist., 990 F.3d at 170 [emphasis in the original] [internal citation omitted], quoting 20 U.S.C. § 1412[a][10][C][ii]).

Here, the parent notified the district of her intent to unilaterally place the student at iBrain for the 2024-25 school year on June 14, 2024 (Parent Ex. A-A).[11]  On June 25, 2024, the parent executed a contract with iBrain for the student to attend iBrain from July 2, 2024 through June 27, 2025 (i.e. the entirety of the 2024-25 school year) (Parent Ex. A-D at pp. 1, 6).  Thus, the hearing record demonstrates that the parent decided to unilaterally place the student at iBrain for the entire 2024-25 school year by no later than June 25, 2024.  The parties do not dispute that the IEP, with which the parent disagreed at the time of the student's unilateral placement and cited as the basis for the 2024-25 unilateral placement, was the May 2024 IEP (Parent Ex. A-A).

The May 2025 CSE did not convene in response to a 10-day notice letter or pursuant to a previously discussed course of action; instead, it was an annual review meeting (see Parent Ex. C). The IHO placed great weight on the May 2025 IEP's projected implementation date of June 2, 2025, as the basis for her finding that a new claim for reimbursement for the 2024-25 unilateral placement arose for the limited period of June 2, 2025 through the end of the 2024-25 school year (IHO Decision at p. 5). However, a projected implementation date on an IEP is generally considered an anticipated start date rather than a strict, legally binding deadline for the commencement of services (see 8 NYCRR 200.4[d][2][v][b][9]).[12]  In contrast, 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]).[13]

Moreover, even if the May 2025 IEP's projected implementation date was controlling, there is no indication in the hearing record that the parent reconsidered her decision to continue the student's unilateral placement at iBrain for June 2025 based on the May 2025 CSE's recommendations.  For example, the parent did not provide a new notice to the district of her intent to continue the unilateral placement of the student at iBrain for June 2025 based on her disagreement with the May 2025 IEP.  Thus, even if the parent's claim that the May 2025 IEP denied the student a FAPE was not barred by res judicata due to the prior proceeding, an analysis of the May 2025 IEP was not relevant to assessing the parent's entitlement to the relief she sought, to wit, tuition funding for the 2024-25 school year or any portion thereof.

Accordingly, in line with the prospective analysis required by the Second Circuit, the May 2024 IEP was the operative IEP at the time the student was unilaterally placed at iBrain for the 2024-25 school year (i.e. July 2, 2024 through June 27, 2025).  The May 2024 IEP was found to have offered the student with a FAPE for the 2024-25 school year in the January 14, 2025 IHO Decision and that finding was upheld on appeal to the Office of State Review (Dist. Ex. 1 at pp. 11-20; Application of a Student with a Disability, Appeal No. 25-124).  The district is correct that it was not required to defend any subsequent IEP developed after the student was attending the unilateral placement for that school year (see Bd. of Educ. of Yorktown Cent. Sch. Dist., 990 F.3d at 173; R.E., 694 F.3d at 187-88).

VII. Conclusion

Based on the foregoing, I find the IHO erred in denying the district's motion to dismiss the parent's due process complaint notice.  Given this determination, I find it unnecessary to address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

THE CROSS APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision dated August 26, 2025 is modified by reversing that portion which denied the district's motion to dismiss the parent's June 2025 due process complaint notice.