I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request for funding for her son's tuition at the International Academy for the Brain (iBrain) and private special transportation services for the 2024-25 school year.  Respondent (the district) cross-appeals from the IHO's denial of its motion to dismiss the parent's due process complaint notice for failure to appear at a resolution meeting, and from the IHO's interim decision on pendency.  The appeal must be sustained in part.  The cross-appeal must be sustained in part, and the matter remanded to the IHO for further administrative proceedings.

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

At the time of the impartial hearing, the student had been attending iBrain since 2018 (Parent Ex. L ¶ 5).[1]  The student has received diagnoses of acquired brain injury, seizure disorder, cortical visual impairment, mild temporal optic disc pallor, bilateral hypermetropia, spastic quadriplegic cerebral palsy, and developmental delays, and has a history of hydrocephalus (Parent Exs. B at p. 10; C at p. 7; L ¶ 2; Dist. Ex. 16 ¶ 13).

A medical accommodation form for the student, signed on December 14, 2023 by a medical provider, indicated that, as part of the student's medical interventions, he would benefit from 1:1 paraprofessional services during school and transport based on unpredictable seizures that could occur at any time; however, check boxes for other supports, such as air conditioning, were not checked on the form (Dist. Ex. 8 at p. 2).

A CSE convened on January 22, 2024 to develop an IEP for the student for the 2024-25 school year (Parent Ex. C; see also Parent Ex. D; Dist. Ex. 2).[2]  Finding that the student remained eligible for special education services as a student with a traumatic brain injury, the January 2024 CSE recommended 12-month services consisting of placement in an 8:1+1 special class in a specialized school, adapted physical education, and related services consisting of four 60-minute sessions per week of individual occupational therapy (OT), one 60-minute session per week of OT in a group of three, five 60-minute sessions per week of individual physical therapy (PT), four 60-minute sessions per week of individual speech-language therapy, one 60-minute session per week of speech-language therapy in a group of three, and three 60-minute sessions per week of individual vision education services (Parent Ex. C at pp. 40-42).[3]  The CSE also recommended one 60-minute session per month of group parent counseling and training, individual school nursing services as needed, and full-time individual paraprofessional support throughout the day (id. at pp. 41-42).  It was also recommended that the student receive special transportation services from the closest safe curb location to school, and that he be transported in a lift bus with a 1:1 paraprofessional (id. at pp. 47-48).  It was indicated in the January 2024 IEP that the parent expressed disagreement with the recommended placement at a district specialized school and with the lack of music therapy provided by a licensed music therapy provider (Parent Ex. C at p. 50; Dist. Ex. 2 at p. 4).

By prior written notice dated February 20, 2024, the district informed the parent of the recommendations made by the January 2024 CSE (Dist. Ex. 4).  In a school location letter dated February 20, 2024, the district notified the parent of the public school site to which the student had been assigned for the 2024-25 school year (Dist. Ex. 6).

In a letter, dated June 14, 2024, the parent, through her attorney, informed the district of her "rejection of the most recent proposed" IEP and of its "recommended program and school placement" for the 12-month 2024-25 school year because of the district's failure to offer the student a free appropriate public education (FAPE) (Parent Ex. A-A at p. 1).  The parent also asserted that the district had failed to issue a school location letter for the 12-month 2024-25 school year (id.).  The parent further stated that if the district "recommend[ed] the same [specialized] public school as last year … the [p]arents ha[d] previously rejected that location because it was not appropriate for the [s]tudent" (id.).  The parent indicated that she wanted pendency at iBrain and attached a "pre-populated" pendency implementation form to her letter (Parent Exs. A-A at p. 1; A-B at p. 1).  The parent's letter further alleged that the parent had "expressed []he[]r concerns, disagreements, and rejection of the" most recent IEP at the CSE meeting, and "continue[d] to request" neuropsychological, PT, OT, speech-language therapy, special education, and assistive technology independent educational evaluations (IEEs) at public expense "due to the lack of proper assessments conducted by the [district] prior to the development of the most recent IEP" (Parent Ex. A-A at p. 2).

The parent also stated that based on her "review of the proposed recommended program and placement for the [s]tudent, the proposed IEP" for the 12-month 2024-25 school year was not designed to enable the student to receive appropriate educational benefits or receive appropriate related services (Parent Ex. A-A at p. 2).  The parent claimed that the recommended program could not be implemented "during the regular school day" (id.).  According to the parent, she "remain[ed] willing and ready to entertain an appropriate public or approved non-public school placement that c[ould] provide the required intensive academic and related services program the [s]tudent require[d]," and requested that "the CSE reconvene for th[at] purpose once the IEEs ha[d] been completed in order to develop an appropriate IEP" (id.).  Notwithstanding the parent's willingness to entertain an appropriate public school, the parent claimed that she "ha[d] no choice other than to re-enroll the [s]tudent in iBRAIN, which [wa]s an appropriate placement for the [s]tudent and [wa]s the last agreed-upon placement between the [p]arent[] and the [district]" (id.).

On June 21, 2024, the parent signed an enrollment contract for the student to attend iBrain for the 12-month 2024-25 school year (Parent Ex. A-E at pp. 1-14).[4]  According to the terms of the contract, the parent agreed to execute release forms that would allow iBrain to communicate with the student's related service therapists and medical providers, as well as have access to the student's medical and therapy providers' records (id. at p. 11).

The parent electronically signed a school transportation annual service agreement with Sisters Travel and Transportation Services, LLC (Sisters), on June 21, 2024, to provide the student with transportation to and from iBrain, for a term spanning July 2, 2024 through June 27, 2025 (Parent Ex. A-F at pp. 1-7).  The agreement indicated that the student's travel would "be no more than 90 minutes each way," and that the vehicle would have air conditioning, wheelchair accessibility, and sitting space to accommodate one person to travel with the student as needed (id. at pp. 1-2).

On July 25, 2024, the district provided the parent with prior written notice and a school location letter, which reiterated the recommendations made by the January 2024 CSE and indicated that the January 2024 IEP would be implemented at the same assigned school site identified in the February 20, 2024 prior written notice and school location letter (Dist. Exs. 5; 7).

A. Due Process Complaint Notice

In a due process complaint notice dated July 2, 2024, the parent alleged that the district failed to offer the student a FAPE for the 12-month 2024-25 school year (Parent Ex. A).  The parent indicated that she disagreed with the January 2024 CSE's failure to recommend appropriate related services, such as music therapy, special transportation with air conditioning and limited travel time, and appropriate medical supports (id. at pp. 6-8).  The parent also contended that the district had failed to provide her with prior written notice or a school location letter, which prevented her from reviewing the district's assigned school site and denied her meaningful participation in the CSE process (id. at pp. 6, 8).  The parent further alleged that the district's recommended 8:1+1 special class in a district specialized school for the 12-month 2024-25 school year was not appropriate because the student would have been placed with dissimilar, ambulatory peers, and improperly exposed to a "wide range of academic, social, emotional, behavioral, physical, and developmental needs" in the proposed placement (id. at pp. 6-7). 

The parent argued that the assigned school site was inappropriate, unsafe, and could not implement all of the January 2024 IEP recommendations without a recommendation for extended school day services (Parent Ex. A at p. 7).  The parent also contended that the district failed to evaluate the student in all areas of suspected disability, including that the district "denied the parent's request for music therapy without conducting its own evaluation," and that the district failed to adequately address the parent's request to consider a district-approved nonpublic school placement by failing to conduct evaluations related to that process, and that the district failed to recommend a nonpublic school placement "given that there was no appropriate [district] program" (id.).  The parent alleged that the district predetermined the recommendations in the January 2024 IEP because, despite the recommendations of the student's private teacher and service providers that the student be placed in a small class with limited distractions, as well as the parent's stated concerns that the student would regress in a public school placement, the district "went ahead and recommended what they intended to do" (id. at p. 8).  The parent further alleged several general procedural and substantive violations made by the district (id. at pp. 4-5).  Finally, the parent contended that iBrain was an appropriate placement, and that equitable considerations favored the parent's claims (id. at p. 8). 

The parent requested an immediate pendency hearing and an interim order of pendency that would grant direct funding for the student's program at iBrain pursuant to the enrollment agreement between the parent and iBrain, as well as direct funding for transportation services administered by a private provider, pursuant to a transportation contract that the parent executed (Parent Ex. A at pp. 2, 9).  The parent further sought, as a remedy for the alleged denial of FAPE, direct funding of the tuition for the student's attendance at iBrain for the 12-month 2024-25 school year in accordance with an enrollment agreement between the parent and iBrain, as well as "[d]irect payment/prospective funding" of special transportation services in accordance with an agreement between the parent and the private transportation provider (id. at p. 9).  Finally, the parent requested an order directing the district to fund an IEE consisting of a neuropsychological evaluation to be conducted by a qualified provider of the parent's choosing at a reasonable market rate (id. at pp. 7, 9).

B. Impartial Hearing Officer Decisions

An IHO from the Office of Administrative Trials and Hearings (OATH) was appointed to this matter on July 8, 2024 (IHO Decision at p. 3).  An interim order on pendency was issued on July 8, 2024 (July 8, 2024 Interim IHO Decision at pp. 1-3).  The IHO determined that the student's pendency services were based on a March 13, 2023 unappealed IHO decision, which found that the district failed to offer the student a FAPE for the 12-month 2022-23 school year, that iBrain was an appropriate unilateral placement for the student, and that equitable considerations warranted an award of full funding for the cost of the student's attendance at iBrain (id. at p. 1; see Parent Ex. A-C at pp. 5-17).   In his interim decision, the IHO noted that the district incorrectly argued that the student's private transportation services were not part of the student's pendency program, and found that pendency included "fund[ing for] tuition for the private school [the] student attends, as well as related services supplemental tuition as well as special transportation" (July 8, 2024 Interim IHO Decision at p. 1).  According to the IHO, the student's pendency program consisted of tuition to iBrain, "including any and all supplemental tuition for related services and transportation to and from iBrain" for the 12-month school year (id.).  The IHO further determined that "pendency will be provided in the proper, full, program ordered by the IHO" as part of the prior proceeding (id.).  The IHO directed that the student's pendency services would "be retroactive to the date of the filing of the [d]ue [p]rocess [c]omplaint [notice] and, unless modified by a subsequent order or agreement, shall continue until the conclusion of the case" (id. at p. 2).

A prehearing conference was held on August 5, 2024 (Tr. pp. 1-31).  By written motion to dismiss dated August 5, 2024, the district alleged that dismissal was warranted because the parent failed to participate in a resolution meeting despite the CSE's reasonable efforts to hold one (Dist. Mot. to Dismiss).  The district noted, among other things, that, while the parent's representative appeared at a scheduled resolution meeting, the parent was not present and the representative did not participate in any discussion of the parent's claims (id. at p. 7).

In a decision on the district's motion to dismiss dated August 20, 2024, the IHO found that, while the parent did not personally participate in the resolution meeting between the district and the parent's representative, the parent's representative did nonetheless participate on the parent's behalf (Aug. 20, 2024 Interim IHO Decision at pp. 2-3).  The IHO found that the district's position—that the law requires the parents themselves to participate—was not supported, as the IDEA allows parents to secure and act through representatives, even if the statutory language enumerating that benefit did not explicitly apply outside of due process hearings (id. at p. 3, citing 20 U.S.C. § 1415[h][1]).  The IHO further found that, while the district may have taken issue with the parent's representative's conduct during the resolution meeting, the IDEA did not require that "parents, or their representatives, participate in resolution meetings with enthusiasm or cordiality" (Aug. 20, 2024 Interim IHO Decision at p. 3).  The IHO found that the parent met the requirements set forth under the IDEA for participation in resolution meetings, and thereby denied the district's motion to dismiss (id.).

The parties reconvened before the IHO on September 10, 2024 for an impartial hearing, which concluded on November 12, 2024, after five nonconsecutive days of proceedings (Tr. pp. 32-386; Nov. 4, 2024 Tr. pp. 1-17; Nov. 12, 2024 Tr. pp. 18-53).[5]  The parent submitted a post-hearing memorandum of law, dated December 5, 2024, and the district likewise submitted a closing brief, dated December 6, 2024 (IHO Exs. I; II). 

In a decision dated December 31, 2024, the IHO found that the district "provided" the student with a FAPE for the 2024-25 school year (IHO Decision at pp. 3, 7-8).  In the decision, the IHO noted that the only disagreement the parent expressed with regard to the January 2024 CSE's recommendation was the omission of music therapy (id. at p. 6).  In his discussion, the IHO found that there was no evidence to support a finding that the student required music therapy to receive a FAPE (id. at p. 8).  The IHO further found that the January 2024 CSE "recommended a specialized program in a class with a very low student to teacher ratio" along with "extensive services for [the s]tudent that appear[ed] tailored to meet [the s]tudent's needs (id. at p. 7).  The IHO also determined that the January 2024 IEP incorporated appropriate annual goals and the management needs were "specifically tailored" to address the student's needs, in particular, addressing his "ambulatory challenges" (id. at pp. 7-8).  Lastly, the IHO determined that there was "no indication in the record" that the assigned public school site could not implement the January 2024 IEP and further that the parent had not asserted any claims related to the assigned school site (id. at p. 8).  Based on the foregoing, the IHO found the district met its burden to establish that the student was "provided" a FAPE for the 2024-25 school year and that the parent was "not entitled to []he[]r requested relief and no further analysis [wa]s necessary" (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred:  in finding that the district offered the student a FAPE for the 12-month 2024-25 school year; by declining to find that the student's unilateral placement at iBrain was appropriate; by declining to find that equitable considerations favored the parent's claims for relief; and by neglecting to specify that the pendency award included funding for private transportation services in accordance with the terms of the contract the parent entered into with a private provider.  More specifically, the parent contends, among other things, that the IHO erred by finding that the parent's only disagreement with the January 2024 IEP was that music therapy was not recommended, as there is evidence that she raised other concerns, such as her disagreement with a public school placement and with the January 2024 IEP's special transportation recommendations.  The parent makes additional arguments with respect to the district's alleged failure to offer a FAPE, as related to:  an asserted failure to recommend music therapy in the January 2024 IEP; the alleged insufficiency of the recommended assigned school site; the January 2024 CSE's alleged failure to consider a nonpublic school placement and denial of the parent's ability to meaningfully participate in the CSE process; and an assertion of inadequate special transportation recommendations, as well as the district's asserted failure to initiate the provision of transportation services.  The parent requests that the IHO's decision be reversed in its entirety, and that the following findings are issued:  that the district failed to meet its burden to show that a FAPE had been offered to the student for the 2024-25 school year; that the parent met her burden in showing that iBrain was appropriate; that equitable considerations support the parent's claims for relief; and that the IHO's pendency order be "clarified" to include funding for private transportation services.

In an answer and cross-appeal, the district asserts that the IHO correctly determined that it offered the student a FAPE for the 12-month 2024-25 school year.  Initially, the district claims that the parent's challenges to the district's recommendations were limited to the failure to recommend music therapy on the January 2024 IEP and with the proposed assigned school site.  The district argues that the student's needs addressed by music therapy in the iBrain IEP can be addressed by other related services recommended in the district's January 2024 IEP.  The district contends that the parent provided no evidence that music therapy was required for the student to receive a FAPE.  The district also argues that once the January 2024 CSE determined that an 8:1+1 special class was appropriate, it was not required to consider more restrictive placements.  The district further contends that it recommended appropriate special transportation services and that the January 2024 IEP appropriately addressed the student's moro startle reflex.  With regard to the parent's assigned school site claims, the district alleges that the district school psychologist testified that the assigned school site was capable of implementing the January 2024 IEP and the parent's remaining assigned school claims were improperly speculative.  As its cross-appeal, the district alleges that the IHO erred in his interim order on pendency to the extent that the IHO ordered the district to fund the student's private transportation services delivered by Sisters.  The district argues that a school district determines how pendency services are implemented, and that given the district was "ready and able to provide" the student's transportation, the district cannot be compelled to fund private transportation.  In the alternative, the district contends that, if it is required to fund transportation under pendency, then such an award should be limited from the date of filing of the due process complaint notice until the district offered to provide transportation to the student on July 11, 2024, which the parent rejected.[6]

The district asserts that the IHO properly declined to reach the issues of whether iBrain was an appropriate unilateral placement and whether equitable considerations supported the parent's requested relief.  However, if the IHO's finding that the student was offered a FAPE for the 12-month 2024-25 school year is reversed, the district requests that the matter be remanded to the IHO to consider those issues.  Lastly, the district alleges that the IHO erred in denying its motion to dismiss on the ground that the parent failed to participate in the resolution meeting.[7]  As relief, the district requests that the parent's appeal be dismissed and that the IHO's decision be affirmed.

In a reply and answer to the district's cross-appeal, the parent reasserts the claims set forth in the request for review, argues that the district is required to fund her private transportation services as pendency, and alleges that the IHO correctly denied the district's motion to dismiss the parent's due process complaint notice.

V. Applicable Standards

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

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

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

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

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

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

VI. Discussion

Initially, the parent has not appealed from the IHO's failure to address the parent's request, as raised in the due process complaint notice, for publicly funded IEEs.  Thus, the parents' request for funding for independent evaluations has been deemed abandoned and will not be further addressed (8 NYCRR 279.8[c][4]; see Davis v. Carranza, 2021 WL 964820, at *12 [S.D.N.Y. Mar. 15, 2021] [upholding an SRO's conclusions that several claims had been abandoned by the petitioner]).

A. FAPE 2024-25 School Year

Turning to the issues raised on appeal, the IHO discussed the recommendations of the January 2024 CSE and found that the IEP was appropriate, and that the parent's only disagreement with the program was the failure to recommend music therapy (IHO Decision at pp. 6-8).  The IHO credited the testimony of the district's school psychologist in finding that the student did not require music therapy and noted that the parent did not explain why "music therapy [wa]s vital to ensuring that [the s]tudent receive[d] a FAPE" (id.).  The parent argues the IHO erred in finding the district's failure to recommend music therapy was not a denial of FAPE for the student, as the district did not offer a cogent and responsive explanation for why the district did not recommend that service. 

Contrary to the parent's allegation regarding the lack of district rationale to not recommend music therapy, the school psychologist testified that while the student received music therapy at iBrain, the January 2024 CSE did not recommend music therapy because the deficits that were being addressed with music therapy could also be properly addressed with other services such as speech-language therapy and OT (Tr. p. 120; Dist. Ex. 16 ¶ 20).  According to the January 2024 IEP, the iBrain music therapy sessions "consist[ed] of live, interactive, and highly individualized music exercises to help [the student] achieve cognitive, communicative, and sensorimotor goals" (Parent Ex. C at p. 6).  During group music therapy, the student practiced greetings, sharing feelings, asking other questions, providing support and encouragement to others, taking turns sharing instruments, and attending within the group context (id. at p. 7).  To meet this need, the January 2024 IEP included social/pragmatic annual goals for the student to greet peers, engage in conversation, demonstrate joint attention, and advocate for himself, which appeared to be a large focus of the music therapy sessions (id. at pp. 6-7, 28).  An iBrain music therapy goal to improve the student's ability to make choices, sequence information, and identify emotions was addressed in the January 2024 IEP through annual goals and short-term objectives that included improving the student's ability to answer open-ended questions, retell simple stories, follow two-step directions with temporal modifiers, and verbally describe his feelings (Parent Exs. C at pp. 29-30, 34; G at p. 6).  Further, the music therapist goal/short-term objective to "practice coping skills and strategies and social skills" was also incorporated into the January 2024 IEP short-term objectives to improve self-regulation and frustration tolerance and his ability to initiate/terminate greetings with others (Parent Exs. C at pp. 30, 35 G at p. 6).

Similarly, both an iBrain music therapy goal and a January 2024 IEP annual goal addressed the student's need to improve breath control and articulation for functional and effective speech (Parent Exs. C at p. 31; G at p. 7).  Additionally, the music therapist identified a goal to "increase accuracy and participation to play instruments and gait training" with benchmark objectives to reach for a target and improve gait parameters of stride length, cadence, and velocity, and the January 2024 IEP included an annual goal for the student to walk 50 feet in a fully supported gait trainer with close supervision (Parent Exs. C at p. 5; G at p. 8).  As such, review of the student's January 2024 IEP shows that it included annual goals and short-term objectives that addressed the student's needs related to expressive and receptive language, social skills, gait training, and self-regulation skills that were targeted by music therapy at iBrain (Parent Ex. C at pp. 25, 28-32, 34-35). 

Based on the evidence in the hearing record, it appears that music therapy at iBrain offered a different approach for addressing the student's needs, and that the January 2024 CSE identified the student's needs and addressed them through other related services and annual goals, and as such, the lack of a recommendation for music therapy as a related service by the January 2024 CSE did not result in a denial of a FAPE in this instance (Cruz v. Banks, 2025 WL 1108101, at *3 [2d Cir. Apr. 15, 2025] [holding that a recommendation for music therapy was not necessary to offer the student a FAPE, when the goals of music therapy were sufficiently accomplished through other services recommended in the IEP]).  In addition, the district was not required to replicate the exact same services that the parent preferred for the student in the private school.  Therefore, there is insufficient basis to disturb the IHO's finding that the student did not require music therapy to receive a FAPE (see N.K., 961 F. Supp. 2d at 592-93 [finding that, although the evidence may have supported that music therapy was beneficial for the student, it did not support the conclusion that the student could not receive a FAPE without it]). [9]

Next, despite the parent's claims that the January 2024 CSE failed to consider a nonpublic school placement for the student, it bears noting that once a CSE determines that an appropriate class placement for the student is available within the district, the district is not obligated to consider a more restrictive setting, such as a nonpublic school (see B.K., 12 F. Supp. 3d at 359 [indicating that "once the CSE determined that a 6:1:1 placement was appropriate for [the student], it was under no obligation to consider more restrictive programs"]; E.F., 2013 WL 4495676, at *15 [explaining that "under the law, once [the district] determined . . . the [LRE] in which [the student] could be educated, it was not obligated to consider a more restrictive environment"]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *7-*8 [S.D.N.Y. Mar. 19, 2013] [finding that "once the CSE determined that [the public school setting] would be appropriate for the [s]tudent, it had identified the [LRE] that could meet the [s]tudent's needs and did not need to inquire into more restrictive options"]).[10]  The parent's preference for the student to remain at iBrain is understandable because it is readily apparent that she believes her unilateral selection of a private school has proven to have been a beneficial experience for her son; however, the district was not required to consider placement of the student in a nonpublic school once it determined that a less restrictive placement was appropriate to address the student's needs.

With respect to the parent's contentions that the assigned school site could not implement all of the student's related services without an extended school day, the IHO found that there was "no indication in the [hearing] record that the school recommended by the [district] could not implement the program the [district] recommended for [the s]tudent and [the parent did] not make any arguments that the school recommended for [the s]tudent did not have the program in question" (IHO Decision at p. 8).[11]  Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88).  The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]).  However, a district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]).  The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. 2015]).  Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5).  Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244).  In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]).  Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F., 2016 WL 3981370, at *13; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).

Here, the IHO correctly determined that the hearing record supported a finding that the assigned school site was capable of implementing the program recommended in the January 2024 IEP.  Further, the parent's claims in this regard are impermissibly speculative.  The January 2024 CSE recommended related services to be delivered at the provider's discretion in either a separate location or in the student's classroom (Tr. p. 240; Parent Ex. C at pp. 41-42).  The school psychologist testified that this flexibility would have allowed the student to be in the classroom receiving the benefit of instruction while also having the support of the individual or group related service, and that this would likely have ensured that the student received all of his mandated services, as was required (Tr. pp. 240-41).  Additionally, it bears noting that the parent testified to never having called or toured the proposed public school after receiving a school location letter in February 2024 (Tr. pp. 335-37).  Based on the above, there was nothing in the January 2024 IEP that would have prevented the student's related services providers from delivering the student's related services in the student's 8:1+1 special class, and the hearing record does not indicate that the district was factually incapable of implementing the student's recommended program, as written, within the  regular school day.[12]

Further, to the extent that the parent asserts that the district did not submit evidence to show that the student would have been placed with other students with similar ages, behavioral, academic, and social and emotional needs as required by State regulation, when a student has not yet attended the proposed classroom at issue, claims related to functional grouping tend to be speculative in nature (J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. Mar. 16, 2016] [finding that "grouping evidence is not the kind of non-speculative retrospective evidence that is permissible under M.O." where the school possessed the capacity to provide an appropriate grouping for the student, and plaintiffs' challenge is best understood as "[s]peculation that the school district [would] not [have] adequately adhere[d] to the IEP"], quoting R.E., 694 F.3d at 195; see M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244-45 [2d Cir. 2015]).  Various district courts have followed this precedent post M.O. (G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016] [same]; L.C. v. New York City Dep't of Educ., 2016 WL 4690411, at *4 [S.D.N.Y. Sept. 6, 2016] ["Any speculation about which students [the student] would have been grouped with had he attended [the proposed placement] is just that—speculation.  And speculation is not a sufficient basis for a prospective challenge to a proposed school placement"]). Thus, this claim is also impermissibly speculative and does not provide a basis to disturb the IHO's findings that a FAPE was offered to the student.

Overall, in reviewing the IHO's findings, the decision shows that the IHO considered the testimonial and documentary evidence presented by both parties, and further, that he weighed the evidence and properly supported his conclusions (IHO Decision at pp. 5-8). Furthermore, an independent review of the entire hearing record reveals that the impartial hearing was conducted in a manner consistent with the requirements of due process and that there is no reason appearing in the hearing record to modify the IHO's ultimate conclusions on the issues identified above (see 20 U.S.C. § 1415[g][2]; 34 CFR 300.514[b][2]).  Thus, the conclusions of the IHO regarding the issues above are hereby adopted.

1. Special Transportation 

Notwithstanding the above, the IHO did not address the parent's claims related to the recommended special transportation services. 

The parent contends that the district failed to offer the student a FAPE by failing to recommend limited travel time and air conditioning as part of the student's special transportation services, and that the burden was impermissibly placed on the parent to request special transportation services from the district for the 2024-25 school year.  The parent further contends that the district failed to meet its burden to establish that the student did not require those transportation accommodations.  The district contends that the parent was required to sign Health Insurance Portability and Accountability Act (HIPAA) forms and medical accommodation forms and return them to the district in order to receive special transportation services, but that this process was not completed by the parent.  The district alleges that, notwithstanding the above, it offered special transportation services to the parent by letter on July 11, 2024, but the parent testified to making no attempts to arrange for those services (see Dist. Mem. of Law Ex. 2).  The district further contends that the parent did not express disagreement with the lack of limited travel time or air conditioning at the January 2024 CSE meeting, or during the impartial hearing.

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

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

Here, the evidence shows the January 2024 CSE recommended the following special transportation accommodations: transportation from the closest safe curb location to the school, 1:1 paraprofessional services, a lift bus, and it was noted that the student used a wheelchair (Parent Ex. C at pp. 46-47; Dist. Ex. 16 ¶ 19).  The January 2024 IEP indicated that the student needed special transportation accommodations because of his medical diagnoses, as he was non-ambulatory and had limited verbal abilities (Parent Ex. C at p. 47). 

The school psychologist's testimonial affidavit indicated that the January 2024 CSE reviewed the student's medical forms at the CSE meeting and determined that recommending school-based nursing services was appropriate for the student (Dist. Ex. 16 ¶ 14).  The hearing record includes the student's medical accommodation forms for the 2023-24 school year, which were signed by his physician on December 15, 2023 (Dist. Ex. 8 at pp. 1-4).  The February 20, 2024 prior written notice reflects that the January 2024 CSE reviewed and considered the medical accommodation forms (Dist. Ex. 4 at p. 2). 

Among the medical accommodation forms was a seizure medication administration form (Dist. Ex. 8 at p. 1).  The form included sections for in-school medications, emergency medications, and home medications (id.).  The form did not include any entries related to in-school medications (id.).  With regard to emergency medications, the pre-populated section of the form stated that a nurse must administer emergency medications and must call 911 immediately after administration (id.).  The emergency medication section included an entry for a rescue medication that must be delivered to the student five minutes after a seizure lasting more than five minutes, or in the event of the student experiencing three or more seizures during a period of one hour (id.).  The form also indicated that the student received a "home" medication (id.).  Although the form itself required emergency medication to be administered by a nurse, "[o]ther special instructions" noted on the form stated that "[a]ny nurse-trained individual may administer" (id.)  However, the notation did not indicate whether it was in reference to emergency medication, home medication, or both (id.). 

The student's 2023-24 medical accommodations request form indicated that it was made pursuant to "504" and related to a medical diagnosis of seizures (Dist. Ex. 8 at p. 2).[13]  The form reflected that the condition was "[c]hronic" rather than acute, and the request was for "paraprofessional support" rather than nursing services, transportation, or other (id.).  The form further indicated that the student may require administration of medications during school and during transport (id.).  Although the form provided for other services by request, which consisted of "air conditioning," "ambulation assistance," "elevator pass," or "other," the request stated that "[s]eizures are unpredictable and can occur at any time.  For safety concerns, [the student] w[ould] benefit from a 1:1 para during school and transport" (id.).  The form did not include a request for air conditioning or limited travel time.

The school psychologist also testified on cross-examination that she could not recall if the parent expressed concern about the recommended special transportation accommodations during the January 2024 CSE meeting, but she stated that such a concern would have been noted on the meeting minutes and on the IEP, if brought up (Tr. p. 224).  There is no indication in the CSE meeting minutes, the January 2024 IEP, or the prior written notice that concerns were discussed regarding the student's special transportation accommodations, rather, it was merely indicated that special transportation accommodations for the student were needed (Parent Ex. C at pp. 46-47, 50-51; Dist. Exs. 2 at p. 4; 4 at pp. 2-3). 

The school psychologist further testified that, when making special transportation recommendations in an IEP, the district asks that parents complete and submit medical accommodation forms and a HIPAA release, which are then submitted to the Office of School Health (OSH), and the district then communicates with the child's physician to discuss the child's needs (Tr. pp. 222-24, 231-33).  This was done to ensure that "medically based recommendations" were made in the IEP, so that an accommodation was not recommended that could potentially be dangerous for the student (Tr. pp. 233, 238).  She indicated that this was also done so the CSE knew what potential triggers a student may have for seizure-related matters (Tr. p. 222).  The school psychologist testified that she believed it likely that the parent did not submit a HIPAA release (Tr. pp. 223-24).  She also reviewed the medical accommodation forms in the hearing record and noted that the box indicating that the student needed air conditioning during transportation was not checked (Tr. p. 224; see Dist. Ex. 8 at p. 2).

A review of the student's individualized health plan in the April 2024 iBrain education plan, which included a seizure management plan, indicated that the student required "adequate ventilation, [to] be free of injury, [to] be monitored, and [to] be given verbal reassurance during the seizure activity" (Parent Ex. E at p. 35).[14]  The iBrain health plan and district medical accommodation forms did not specify any environmental conditions that needed to be adhered to, or identify possible triggers for the student's seizure activity (Parent Ex. E at pp. 34-35; Dist. Ex. 8 at pp. 1-4).  However, the iBrain education plan included transportation recommendations such as the provision of 1:1 paraprofessional services, air conditioning, a regular sized wheelchair, and limited travel time of 60 minutes (Parent Ex. E at p. 58).

Finally, the parent testified that the student's unilaterally obtained private transportation service had a commute of approximately one hour, each way, and that a paraprofessional accompanied him (Tr. pp. 360-65).

With respect to the parent's contentions that the student required limited travel time and air conditioning during transportation in order to be provided with a FAPE for the 2024-25 school year, I find that the hearing record is not developed enough on these issues to make a determination.  It is unclear as to the exact basis for the parent's assertion that the student medically required these accommodations, as the only reference in the hearing record as to those accommodations was the recommendations made in the iBrain education plan.  This is especially important, considering the testimony of the school psychologist that triggers for seizures can have a variety of causes for different students (Tr. pp. 222, 233).  What's more, as noted earlier, the student's medical accommodation forms, signed by the student's medical provider, did not indicate that the student required air conditioning during transportation (Dist. Ex. 8 at p. 2).  Additionally, while there was some discussion about air conditioning, albeit sparse, there was little, if any, discussion about limited travel time.  If the student did require limited travel time, the hearing record does not elucidate what would constitute a sufficiently limited travel time for this particular student.[15]  Adding further confusion to this matter is that, while the iBrain education plan recommended that the student have a limited travel time of 60 minutes, the parent's signed agreement with Sisters indicated that the student's travel time would be "no more than 90 minutes each way" (compare Parent Ex. A-F at p. 1, with Parent Ex. E at p. 58).  Considering the above, there is insufficient information in the hearing record to render a decision as to the appropriateness of the district's recommendations related to special transportation.  As the hearing record was not properly developed regarding the student's potential need for air conditioning and limited travel time during transportation, the matter is remanded for a determination as to whether the district's special transportation recommendations addressed the student's needs at the time the January 2024 IEP was developed.

B. Pendency

The parent contends that, while the IHO correctly found that the student's pendency lay in the program described in a March 13, 2023 unappealed IHO decision, the IHO in this matter erred by failing to specify that the district was required to fund the costs of the student's private transportation services, under the terms of the contract with the parent.  The district contends that it is not required to fund the private provider, as it is the district, not the parents, "who gets to decide how pendency is implemented" and that pendency lies in the provision of services, not specific providers.  In the alternative, the district contends that, if ordered to fund the private service, the district should only be mandated to fund transportation from the date of the filing of the due process complaint notice until July 11, 2024, when the district offered to provide transportation services to the student, which the parent declined.

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]).[16]  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).

As discussed above, the IHO's July 8, 2024 interim decision on pendency determined that the student's program during the pendency of this proceeding was based on the program outlined in a March 13, 2023 unappealed IHO decision (July 8, 2024 Interim IHO Decision at p. 1; see Parent Ex. A-C).  The IHO noted in his interim decision that the March 13, 2023 unappealed IHO decision included funding for special transportation and he further stated in his interim decision that "pendency [would] be provided in the proper, full, program ordered by the IHO in" the March 13, 2023 unappealed IHO decision, and that it would be retroactive to the date of filing of the due process complaint notice until the conclusion of the proceeding (id. at pp. 1-2).

During the August 5, 2024 prehearing conference, the parties and IHO appeared to be unaware that an interim decision on pendency was issued on July 8, 2024 (Tr. pp. 8-13, 15-16).  According to the transcript, the parties were required to submit their positions on pendency in writing on or before August 9, 2024 (Tr. pp. 13, 15).  Notably, the district's memorandum of law is dated August 12, 2024, subsequent to the date of the interim decision on pendency.[17]  The hearing record does not include any written submission related to pendency from the parent, nor do the remaining transcripts indicate that the issue of pendency was revisited.  In his argument in support of an extension to the compliance date on the last day of the impartial hearing on November 12, 2024, the district's attorney stated that "the student has pendency. The IHO issued a pendency order in this case on July 8, 2024.  There's, there's no articulable harm to the student since they do have pendency" (Nov. 12, 2024 Tr. p. 49). 

Notwithstanding the district attorney's acknowledgement of the July 8, 2024 interim decision on pendency, it appears that the IHO solicited written submissions from the parties on the issue of pendency after he had issued his interim decision.  It further appears that the IHO did not consider any written submissions he received, did not hold a pendency hearing in this matter, or further revisit the issue of pendency after the August 5, 2024 prehearing conference.

To further complicate matters, the IHO ordered that "pendency will be provided in the proper, full, program ordered by the IHO" in the prior proceeding  without including the actual language from the March 13, 2023 unappealed IHO decision or grappling with its meaning.

The ordering clause of the March 13, 2023 unappealed IHO decision stated that the district was required to directly fund special transportation costs pursuant to the parent's contract with Sisters for the 2022-23 school year "until such time as [the district] actually provide[d] special transportation materially similar to the one . . . provided unilaterally through [the p]arent, and [the p]arent can exercise her right to terminate the unilaterally obtained special transportation pursuant to the transportation agreement" (Parent Ex. A-C at p. 18 [emphasis omitted]). 

While the district's offer of transportation appears to have been made after the July 8, 2024 interim decision on pendency was issued, the July 11, 2024 letter was an exhibit to the district's memorandum of law in support of its position on pendency and pre-dates the August 5, 2024 prehearing conference, wherein the IHO and the parties stated that pendency was in dispute (Tr. pp. 8, 10, 12).  Based on the foregoing, it does not appear that the IHO considered the parties' positions on pendency following the August 5, 2024 prehearing conference, nor did the IHO revisit the issue of pendency in light of the district's offer of transportation, an offer specifically contemplated by the March 13, 2023 unappealed IHO decision that formed the original basis of the July 8, 2024 interim decision on pendency.  As such, the issue of pendency must also be remanded to the IHO.  Upon remand, the IHO must consider whether the district's offer of transportation was "materially similar" to the private transportation services delivered by Sisters and whether the parent could terminate her contract with Sisters at the time of the district's offer.[18]

C. Remand

Based on the above, the IHO's July 8, 2024 interim decision on pendency must be vacated, the IHO's December 31, 2024 decision must be reversed in part, and the matter remanded to the IHO for further proceedings.  When an IHO has not addressed claims set forth in a due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]).

Specifically, the IHO must determine whether the student's need for air conditioning and/or limited travel time was known to the January 2024 CSE, and further whether the district's recommended special transportation services addressed the student's needs.  With regard to pendency, the IHO is directed to hold a pendency hearing and determine whether the district is required to fund private transportation services pursuant to the parent's contract with Sisters in light of the specific language in the ordering clause of the March 13, 2023 unappealed IHO decision.  The IHO must determine if the district's offer of transportation is materially similar to the transportation provided by Sisters and whether the parent was able to terminate the contract with Sisters at the time the district's offer of transportation was made.

VII. Conclusion

In summary, while I adopt the majority of the findings of the IHO in his decision, and find that the majority of the remaining contentions by the parent did not rise to the level of a deprivation of a FAPE to the student for the 12-month 2024-25 school year, the IHO did not address the issue of whether or not the omission of air conditioning and limited travel time from the January 2024 CSE's special transportation recommendations denied the student a FAPE.  In addition, the IHO must address pendency as detailed above. 

I have considered the parties' remaining contentions and find the necessary inquiry at an end. 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision dated December 31, 2024 is modified by reversing that portion that concluded the district offered the student a FAPE for the 12-month 2024-25 school year; and

IT IS FURTHER ORDERED that this matter is remanded to the IHO to reconvene the impartial hearing, clarify the issue of special transportation during pendency, and address the parent's contention that the district denied the student a FAPE for the 12-month 2024-25 school year based on the parent's remaining claim related to special transportation raised in the due process complaint notice.