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 that respondent (the district) fund the costs of her daughter's tuition at the International Academy for the Brain (iBrain) for the 2024-25 school year.  The district cross-appeals from that portion of the IHO's decision which found that the student's placement at iBrain for the 2024-25 school year was appropriate.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  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 parties' familiarity with this matter is presumed and, therefore, the student's educational history will not be recited here in detail.  The student was unilaterally placed at iBrain in January 2023, after a "significant period of being out of school" (Parent Ex. C at p. 1; Dist. Exs. 1 at p. 1; 5 at p. 1).[ 1]  The student had received diagnoses of cerebral palsy, dysphagia, aphasia, visual impairment, auditory impairment, and severe developmental delay (Parent Ex. C at p. 42; Dist. Ex. 5 at p. 41).  She was 21 years old at the relevant time (Parent Ex. C at p. 1; Dist. Exs. 1 at p. 1; 5 at p. 1).

On February 8, 2024, a CSE convened for a meeting; determined that the student was eligible for special education as a student with multiple disabilities; and developed an IEP with a projected implementation date of February 26, 2024 (Dist. Exs. 1 at pp. 1, 52; 3 at p. 1). [2] Participants in the February 2024 CSE meeting included a district school psychologist; a district special education teacher; the parent; advocates for the parent; iBrain's deputy director of education; and the student's teacher and service providers at iBrain (Dist. Exs. 1 at pp. 55-56; 2).

The February 2024 CSE recommended the student receive services on a 12-month basis; attend a 6:1+1 special class for 35 periods per week in a district public school; and participate in adapted physical education for three periods per week (Dist. Exs. 1 at p. 45; 3 at p. 2).  For related services, the CSE recommended five 60-minute sessions per week of individual occupational therapy (OT); five 60-minute sessions per week of individual physical therapy (PT); two 60-minute sessions per week of individual vision education services; and five 60-minute sessions per week of individual speech-language therapy (Dist. Exs. 1 at pp. 45-46; 3 at p. 2).  In addition, the CSE recommended individual paraprofessional support for "health, ambulation, safety, [and] feeding" on a daily, full-time basis; one 60-minute session per week of individual assistive technology services; and access to switches as an assistive technology device (Dist. Exs. 1 at pp. 45-46; 3 at p. 2).  The CSE recommended that all instruction and services be delivered to the student in English (Dist. Exs. 1 at pp. 45-46; 3 at pp. 1-3).  Finally, the CSE recommended the following special transportation accommodations: transportation from the closest safe curb location to school; adult supervision from a 1:1 paraprofessional; and a lift bus, as the student used a wheelchair (Dist. Ex. 1 at p. 51).  Additionally, for the parent the CSE recommended one 60-minute session per month of group parent counseling and training (Dist. Ex. 1 at p. 45).

On June 12, 2024, the district issued a prior written notice and a school location letter (Dist. Exs. 3 at p. 1; 4 at p. 1).  The prior written notice memorialized the recommendations of the February 2024 CSE, as well as the other placement options considered (compare Dist. Ex. 1 at pp. 45-46, with Dist. Ex. 3 at pp. 1-3).  The school location letter identified the public-school site to which the student was assigned to receive the recommended special education programming (see Dist. Ex. 4 at p. 1).

 

In a letter dated June 14, 2024, the parent, through her attorney, informed the district of her disagreement with the program and placement recommended by the February 2024 CSE (see Parent Ex. A-A at pp. 1-2). [3]  The parent's June 2024 letter stated that "no school location letter for the 2024-2025 [extended school year] ha[d] been issued" and expressed the parent's intention to re-enroll the student at iBrain (id.).

On June 17, 2024, the parent entered into a transportation services contract, effective from July 2, 2024 through June 27, 2025, with Sisters Travel and Transportation Services, LLC (Sisters) (Parent Ex. A-E at pp. 1, 6-7).  Under the contract's terms, Sisters would transport the student to and from iBrain for a fee of $220,993.00, to be paid by the parent in three installments (id. at pp. 1-2).  The transportation services contract further provided that the parent's obligation to pay Sisters would be suspended while the parent sought funding from the district (id. at p. 2).

 

On June 21, 2024, the parent entered into an enrollment contract with iBrain for the 2024-25 extended school year, starting on July 2, 2024 and ending on June 27, 2025 (Parent Ex. A-D at pp. 1, 6-7).  Under the contract's terms, the parent would be obligated to pay the base tuition fee of $213,000.00 plus an additional $124,124.20 for the student's related services programming (id. at pp. 1-2).  The parent's contract with iBrain also suspended the parent's payment obligation while she sought funding from the district (id. at p. 2).

In a letter dated July 11, 2024, the district acknowledged the parent's intention to unilaterally place the student at iBrain for the 2024-25 school year (IHO Ex. V).  In the July 2024 letter, the district offered to transport the student to and from iBrain, in accordance with the special transportation recommendations contained in the student's IEP and at no cost to the parent, upon receipt of certain documentation from iBrain (id.).

A. Due Process Complaint Notice and Subsequent Events

In a due process complaint notice dated July 10, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A at pp. 1, 6).  The parent alleged procedural violations of the IDEA and its State counterpart, as well as substantive deficiencies in the February 2024 IEP (id.).  Specifically, the parent alleged that the district failed to conduct updated evaluations of the student ahead of the 2024-25 school year; failed to appropriately classify the student; failed to recommend an appropriate placement; failed to address the parent's concerns with the recommended placement in the IEP; failed to timely notify the parent of the final recommended placement through a prior written notice and/or school location letter; failed to recommend an extended school day; failed to recommend a full-time school nurse; failed to recommend music therapy; and failed to recommend appropriate transportation accommodations (id. at pp. 6-9).  The parent invoked pendency based on the student's 12-month program at iBrain, the operative placement (Parent Exs. A at p. 1; A-B).  As relief, the parent requested an order directing that the district fund the cost of the student's tuition at iBrain for the 2024-25 school year; fund the cost of the student's private transportation services for the 2024-25 school year; fund the cost of an independent neuropsychological evaluation; and, if necessary, reconvene a CSE to address IEP changes (Parent Ex. A at p. 10).

B. Impartial Hearing and Impartial Hearing Officer Decision

An IHO was appointed by the Office of Administrative Trials and Hearings (OATH) (see Aug. 13, 2024 Tr. pp. 1-2).  Following a prehearing conference, an interim hearing on pendency convened on August 16, 2024 (see Tr. pp. 1-64).  On August 27, 2024, the IHO issued an interim order on pendency, under which the student's pendency entitlement consisted of iBrain tuition and special transportation on a 12-month basis (Aug. 27, 2024 IHO Decision at p. 1). [4]

Also on August 16, 2024, the district filed a motion to dismiss the due process complaint notice based on the parent's alleged failure to participate in a resolution meeting (IHO Exhibit III at pp. 1-2, 12).  On August 21, 2024, the parent's counsel filed a response, opposing the district's motion to dismiss (IHO Ex. IV at pp. 1, 21).  On August 29, 2024, the IHO issued an interim order, denying the motion (Aug. 29, 2024 IHO Decision at pp. 3-4).

An impartial hearing convened on September 6, 2024 and concluded on October 15, 2024, after three days of proceedings on the merits (see Tr. pp. 65-221; Tr. pp. 222-349; Oct. 15, 2024 Tr. pp. 1-43). [5]  During the hearing, the district offered various exhibits, each of which the IHO admitted into evidence (see Tr. pp. 72-74, 77).  The district's exhibits included testimony by affidavit of the district school psychologist who participated in the February 2024 CSE meeting (see Tr. pp. 77, 127, 133; Dist. Ex. 12 ¶ 7). [6]  The parent likewise offered various exhibits, all but one of which the IHO admitted into evidence (see Tr. pp. 83-88, 101-103). [7]^, [8]  The parent's exhibits included testimony by affidavit of the deputy director of special education at iBrain and the parent herself (see Tr. pp. 83-87, 101-103; Parent Exs. H; I).

The school psychologist appeared for cross-examination during the hearing, as did iBrain's deputy director of special education (see Tr. pp. 127, 140-94, 227-98).  The parties initially anticipated that the parent would appear for cross-examination, but she ultimately declined to do so (see Tr. pp. 343-48; Oct. 15, 2024 Tr. p. 5).

As a consequence of the parent's refusal to be cross-examined, the district's counsel asked that the IHO strike the parent's affidavit from the record and draw a negative inference against the parent (Oct. 15, 2024 Tr. pp. 6, 21-22).  The parent's attorney argued that a negative inference was unwarranted and suggested that the IHO merely strike the parent's affidavit from the record (Oct. 15, 2024 Tr. pp. 5, 18, 22-23).  The IHO indicated that she would leave the affidavit in evidence but discredit each disputed allegation contained therein (Oct. 15, 2024 Tr. pp. 15-16, 23).  At the IHO's request, the parties identified the paragraphs within the parent's affidavit to which they stipulated (Oct. 15, 2024 Tr. pp. 23-28).  Review of the hearing transcript reveals that all paragraphs of the parent's affidavit except paragraphs one through three and six are disputed (see id.).

In a decision dated January 23, 2025, the IHO determined that the district offered the student a FAPE for the 2024-25 school year and denied the parent's requested relief (Jan. 23, 2025 IHO Decision at pp. 7, 10, 12).

First, the IHO addressed the parent's procedural claims (see Jan. 23, 2025 IHO Decision at p. 8).  The IHO found that, "[w]hile [the district] failed to obtain timely evaluations" of the student, the district "relied upon the recent evaluations conducted by [iBrain] and the detailed feedback provided by [the] [s]tudent's teachers[,] all of which provided adequate information about [the] [s]tudent's needs" (id.).  Likewise, the IHO found that the district's failure to notify the parent of the CSE's placement recommendation in a prior written notice and/or school location letter sooner than two weeks prior to the start of the extended school year on July 1, 2024, although troubling, did not amount to a denial of a FAPE (id. at p. 9).  In that regard, the IHO reasoned that the hearing record lacked evidence that the district's failure to provide the notices sooner impeded the parent's ability to investigate the proposed educational placement (id.).

Turning to the parent's substantive claims, the IHO rejected the parent's claim that the February 2024 IEP could not have been implemented without an extended school day because the six-hour school day did not allow sufficient time to deliver the student's related services, as recommended (Jan. 23, 2025 IHO Decision at p. 8).  The IHO found such claim to be unduly speculative, noting the school psychologist's testimony that the recommended services could be provided on a push-in basis (id.). The IHO likewise rejected the parent's challenges to the recommended placement as speculative, finding that the district provided a cogent explanation of its decision to recommend a 6:1+1 special class in a district 75 public school (id. at p. 9). [9]

The IHO determined that the student's classification as a student with multiple disabilities, rather than a traumatic brain injury, did not amount to a denial of a FAPE (Jan. 23, 2025 IHO Decision at p. 10).  In that regard, the IHO reasoned that the law requires the district's program recommendations to be based on the student's unique educational needs, rather than the student's disability classification, and that the school psychologist testified to the same (id.).

The IHO further determined that the omission of music therapy and/or school nurse services did not render the February 2024 IEP substantively inadequate (Jan. 23, 2025 IHO Decision at pp. 8-9).  According to the IHO, while the student may have benefited from music therapy, the district provided a cogent explanation of the decision not to recommend it, as the school psychologist testified that the student's needs could be properly addressed through other related services (id. at p. 9).  As for school nurse services, the IHO reasoned that, while the student "require[d] feedings of ensure, milk, boost, or fiber enriched milk products via a baby bottle" during the school day, the student "would hold the bottle [to] feed herself" and did not take medication at school (id. at p. 8, n.7).  The IHO further reasoned that, contrary to the parent's argument, the CSE contemplated the student's need for a school nurse, as evidenced by the following IEP goal, which mirrors the program implemented at iBrain: "'The [p]araprofessional will consistently consult with the school nurse regarding close monitoring of [the student's] medical needs and will ensure that [the student's] toileting, feeding, and ambulation needs are addressed"' (id. at pp. 8-9, n.8).  The IHO also noted the parties' agreement that the student did not require a 1:1 nurse, as well as the school psychologist's testimony that "'all schools have nurses in them"' (id. at p. 9).

As for special transportation, the IHO found the district's recommendations, which included a lift bus and a transportation paraprofessional, to be sufficient (Jan. 23, 2025 IHO Decision at p. 10).  The IHO reasoned that nothing in the hearing record indicated that the student needed limited travel time or air conditioning to be safely transported to school (id.).  The IHO also noted that iBrain's deputy director of special education "testified that a transportation paraprofessional, not a nurse, accompanies [the] [s]tudent on the private transportation bus" and that the district "offered to provide [the] [s]tudent with specialized transportation for the 2024-25 school year" (id.).

After determining that the district offered the student a FAPE for the 2024-25 school year, the IHO addressed whether, in the alternative scenario, iBrain was an appropriate unilateral placement for the student (see Jan. 23, 2025 IHO Decision at pp. 10-11).  The IHO noted that the hearing record did not include evidence regarding the qualifications of the student's teachers and related services providers; a class schedule; a related services schedule; attendance records; or progress reports for the school year at issue (id. at p. 10).  Nevertheless, the IHO found that the student's program at iBrain was appropriate for the 2024-25 school year, as it "mirror[ed] the program recommended by the CSE, with [the] addition of music therapy" (id. at p. 11).   The IHO further reasoned that the school nurse would address the student's health concerns; the student's 1:1 paraprofessional would address her feeding needs and other activities of daily living; and the student's private transportation provided a lift bus with air conditioning, a 1:1 paraprofessional, and limited travel time (id.).

Finally, the IHO weighed the equities and determined that equitable considerations did not favor the parent's request for relief (Jan. 23, 2025 IHO Decision at pp. 11-12).  The IHO reasoned that the parent's actions during the administrative proceedings were unreasonable, specifically citing the parent's refusal to testify on cross-examination and her lack of participation in the July 2024 resolution meeting (id.).  According to the IHO, the parent's refusal to be cross-examined raised questions, which remained unanswered, "regarding fraud or collusion on the" parent's part (id. at p. 12).  The IHO further noted that the district's closing brief raised questions, which also remained unanswered due to the parent's refusal to be cross-examined, regarding the parent's 10-day notice, the student's attendance, and whether the parent had made payments to iBrain or the private transportation company (id.).  The IHO indicated that, although she had declined to dismiss the case due to the parent's lack of participation in the resolution meeting, she now viewed such "lack of participation differently considering [the] [p]arent's last-minute refusal to be cross-examined" (id.). [10]  Thus, the IHO concluded that, had she not found that the district offered the student a FAPE for the 2024-25 school year, she would have denied the requested relief based on equitable considerations (id.).

IV. Appeal for State-Level Review

The parent appeals, and the district cross-appeals.  The parties' familiarity with the issues raised in their respective pleadings is presumed and, therefore, the allegations and arguments will not be recited here in detail.  Briefly, the parent contests the IHO's determinations that the district offered the student a FAPE for the 2024-25 school and that equitable considerations do not favor the parent's request for relief, while the district contests the IHO's determination that iBrain was an appropriate unilateral placement for the student.  The parent seeks direct payment of the full cost of the student's tuition in accordance with the parent's enrollment contract with iBrain, as well as direct payment of the full cost of the student's special transportation services in accordance with the parent's transportation agreement.  The district asks that an SRO deny or, at least, reduce the requested relief.

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]). [11]

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

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

VI. Discussion

A. Scope of Impartial Hearing and Review

Before addressing the merits of the parent's appeal and the district's cross-appeal, I must determine which claims were sufficiently raised before the IHO and which claims are properly before me on appeal.  Neither party has appealed the IHO's finding that the student's disability classification of multiple disabilities did not amount to denial of a FAPE for the 2024-25 school year; the IHO's finding that the district provided a cogent explanation for its recommendation of a 6:1+1 special class in a District 75 public school; or the IHO's finding that the parent's challenge to the recommended placement was speculative.  Nor has either party appealed the IHO's choice to discredit the disputed allegations in the parent's affidavit as a consequence of her refusal to testify on cross-examination. [12]  Accordingly, those portions of the IHO's decision have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]). [13]

1. Bilingual Services

On appeal, the parent contends that the IHO erred in finding that the district's failure to conduct timely evaluations of the student did not amount to a denial of a FAPE.    More specifically, the parent contends that the district's failure to conduct a home language survey prior to the February 2024 CSE meeting resulted in its failure to recommend a bilingual teacher and paraprofessional. [14]  The district argues that the parent has not explained how the lack of a bilingual paraprofessional and teacher relates to evaluations and that the SRO should disregard this particular claim because the parent did not raise it in her due process complaint notice.

Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056).  Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]). [15]

The parent's due process complaint notice alleged neither the student's need for bilingual services nor the district's failure to conduct a home language survey. [16]  The due process complaint notice broadly alleged the district's failure to evaluate the student in all areas of suspected disability (Parent Ex. A at pp. 7-8); but that allegation cannot be construed to encompass the failure to conduct a home language survey, as limited English proficiency is not, itself, an educational disability or a special education need (see Application of a Student with a Disability, Appeal No. 24-282 [stating that "remediation of limited English proficiency . . . is not itself the purpose of special education services"]; see generally 34 CFR 300.8[c]; 8 NYCRR 200.1[zz]). [17] Thus, although couched in terms of failure to evaluate the student, the omission of bilingual services from the recommended program was not within the range of issues identified for review by an IHO.

When a matter arises that did not appear in a due process complaint notice, the next inquiry is whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue under the holding of M.H. v. New York City Dep't of Educ. (685 F.3d at 250-51; see also Bd. of Educ. of Mamaroneck Union Free Sch. Dist. v. A.D., 739 Fed. App'x 79, 80 [2d Cir. Oct. 12, 2018]; B.M., 569 Fed. App'x at 59; J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at *10 [S.D.N.Y. Feb. 7, 2018]; C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *14 [S.D.N.Y. Feb. 14, 2017]; D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315, 327-28 [S.D.N.Y. 2013]; N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 584-86 [S.D.N.Y. 2013]; A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 [S.D.N.Y. 2013]; J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, *9 [S.D.N.Y. Aug. 5, 2013]).

In this case, the district presented direct testimony from the school psychologist via affidavit, in which the affiant stated that the student preferred Spanish-language instruction (Dist. Ex. 12 ¶ 10).  Based on the context, however, it appears that the district mentioned the student's preference for Spanish-language instruction not for any strategic purpose, but to provide background information about the student. [18]  Thus, I cannot conclude that the district "opened the door" to the claim that it should have recommended bilingual services (see J.G., 2018 WL 749010, at *10 [holding that the district did not "open the door" to the claim that it failed to provide a FAPE during the 2011-12 school year by presenting evidence about that school year "as background information in support of the IEP determinations for [] subsequent [school] years"]; A.M., 964 F. Supp. 2d at 283 [holding that the district had not "opened the door" to an issue that the parent failed to raise in her due process complaint where "there [wa]s no indication that the [district] sought, let alone obtained, a strategic advantage by raising it"]; J.C.S., 2013 WL 3975942, *9 [rejecting the parents' argument that the district "opened the door to the issue of whether "the CSE lacked sufficient information to develop the [student's] IEP" through direct examination of its witness where the witness "merely offered background and foundation testimony about the information the CSE considered"]; cf. M.H., 685 F.3d at 250-51 [holding that the district "opened the door" to the appropriateness of the teaching methodologies offered in the subject IEP by "introduc[ing] the issue of methodology – first in its opening statement, and then in the questioning of its first witness" in an effort to establish the appropriateness of the recommended placement]).

Review of the hearing transcript reveals that the student's purported need for bilingual services arose during the hearing, in response to questioning from the IHO (Tr. pp. 194-96).  Specifically, the IHO asked the district school psychologist to explain why the CSE did not adopt iBrain's recommendation for a Spanish-speaking teacher and paraprofessional; and, in response, the witness stated that, at the time of the meeting, the CSE lacked information indicating that the student qualified for bilingual services (id.).

Although an IHO has the authority to ask questions of counsel or witnesses for the purposes of clarification or completeness of the hearing record (8 NYCRR 200.5[j][3][vii]), or even inquire as to whether the parties agree that an issue should be addressed, it is impermissible for the IHO to simply expand the scope of the issues raised without the express consent of the parties and then base his or her determination on new issues raised sua sponte (see Dep't of Educ., Hawai'i v. C.B., 2012 WL 220517, at *7-*8 [D. Haw., Jan. 24, 2012] [finding that the administrative hearing officer improperly considered an issue beyond the scope of the parents' due process complaint notice]). [19]  The hearing record does not reflect an agreement from the parties that the IHO would review whether the district should have recommended bilingual services in the February 2024 IEP.  That issue was, therefore, outside the scope of the impartial hearing and will not be reviewed on appeal (see D.B., 966 F. Supp. 2d at 328 [stating that "[t]he scope of the inquiry of the IHO, and therefore also of the SRO . . . , is limited to matters either raised in the [parent]s' Amended Due Process Complaint or agreed to by the d[istrict]"]; see, e.g., Application of a Student with a Disability, Appeal No. 24-631 [finding that the IHO erred in determining that the district failed to implement equitable services where the due process complaint notice contained no such allegation and the parties had not agreed to expand the scope of the impartial hearing]).

2. Music Therapy

In its answer and cross-appeal, the district asserts that, while the parent's request for review generally raises the student's need for music therapy, it appears to abandon the matter with regard to the IHO's FAPE determination. [20]  The parent's reply to the district's answer and cross-appeal is not responsive to the district's contention that the parent abandoned the omission of music therapy as it relates to the IHO's FAPE determination.

State regulations governing practice before the Office of State Review provide that a request for review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]).  Additionally, a request for review must provide a "clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately, and identifying the precise rulings, failures to rule, or refusals to rule presented for review" (8 NYCRR 279.8[c][2]).  The practice regulations further state that "any issue not identified in a party's request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer" (8 NYCRR 279.8[c][4]).

In an apparent critique of the IHO's reasoning, the parent's request for review asserts that, while the IHO found the unilateral placement to be appropriate because it provided a program similar to that which the district offered in the February 2024 IEP, the IHO disregarded the differences between iBrain's program and the district's recommended program, including the omission of music therapy from the district's recommendations (Rev. for Rev. at pp. 3-4).  The request for review likewise notes the omission of music therapy from the IEP in connection with the parent's contention that the student required an extended school day to accommodate her related services schedule (Req. for Rev. at p. 5).  Consistent with the district's contention, however, the request for review does not clearly identify the omission of music therapy as a ground for reversing the IHO's determination that the district offered the student a FAPE.  Thus, to the extent that the parent challenges the IEP's substantive adequacy based on the omission of music therapy, that issue is outside the scope of review on appeal and will not be addressed herein (see Application of a Student with a Disability, Appeal No. 25-128 ["State level review of an IHO's determination is not [] the relitigation of all prior arguments conceivably leveled against a party during an impartial hearing"]; Application of a Student with a Disability, Appeal No. 25-066 ["[I]t is not this SRO's role to . . . construct the appealing party's arguments or guess what they may have intended"]; see generally Gross v. Town of Cicero, 619 F.3d 697, 704 [7th Cir. 2010] [stating that appellate review does not entail constructing the parties' arguments]; Lance v. Adams, 2011 WL 1813061, at *2 [E.D. Cal. May 6, 2011] [stating that the tribunal need not guess at the parties' intended claims]).

B. Timeliness of Public-School Site Assignment

Turning to the merits, the parties dispute whether the IHO erred in finding that the timing of the district's school location letter did not deprive the student of a FAPE.  The parent contends that, in failing to send a school location letter sufficiently in advance of the extended school year, the district failed to comply with her procedural rights and, consequently, she had minimal time to investigate the assigned school.  According to the district, the hearing record reflects a timely school assignment notification.

Although not explicitly stated in federal or State regulation, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [noting that "a parent must necessarily receive some form of notice of the school placement by the start of the school year"]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [finding that a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]).  While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented.  This analysis also fits with the competing notions that, while a district's assignment of a student to a particular school site is an administrative decision which must be made in conformance with the CSE's educational placement recommendation (see M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244-45 [2d Cir. 2015]), there is district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *14-*16 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]).

Initially, I note that the hearing record reflects contradictory allegations from the parent regarding the school assignment notification or the lack thereof.  In her 10-day notice dated June 14, 2024, the parent asserted that "no school location letter . . . ha[d] been issued" (Parent Exs. A-A at p. 1).  Similarly, in her testimony by affidavit, the parent asserted that she "did not receive a Prior Written Notice [] or School Location Letter [] . . . after th[e] IEP meeting" (Parent Ex. I ¶¶ 9-10).  In her due process complaint notice, however, the parent alleged that, "[b]y failing to timely notify the [p]arent of its final recommended placement . . . through a Prior Written Notice and/or School Location Letter, [the district] has impeded [] [her] ability to investigate the proposed educational program and placement" (Parent Ex. A at p. 9).  The parent's request for review similarly alleges that the school location letter "was sent to the [p]arent on June 12, 2024, merely two and a half weeks prior to the start of the 24/25 [extended school year]," giving "the [p]arent minimal time to investigate the recommended school" (Req. for Rev. at p. 4).

In any event, the hearing record includes evidence that the district informed the parent of the assigned public school prior to the start of the 2024-25 extended school year (see Dist. Exs. 3 at pp. 1, 7; 4 at pp. 1, 3; 13).  Specifically, the district presented a prior written notice and school location letter, each dated June 12, 2024 and addressed to the parent, along with evidence of their transmission by email on June 12, 2024 (Dist. Exs. 3 at pp. 1, 7; 4 at pp. 1, 3; 13).  Although the parent testified via affidavit that she did not receive a prior written notice or school location letter, the hearing record reflects the IHO's choice to discredit such testimony due to the parent's refusal to appear for cross-examination; and, as indicated above, that decision will not be disturbed on appeal (see Oct. 15, 2024 Tr. pp. 23-28; Parent Ex. I ¶¶ 9-10; IHO Decision at p. 4). [21]  The hearing record includes no other evidence supporting the parent's alleged inability to investigate the assigned school.

Based on the foregoing, the hearing record does not support a finding that the district denied the student a FAPE by reason of an untimely school assignment notification (see, e.g., Application of a Student with a Disability, Appeal No. 25-113 [declining to find that the timing of the district's school location letter violated the parent's procedural rights where the hearing record lacked "evidence that the parent attempted to obtain information about the assigned school after the . . . school location letter was sent"]; Application of the Dep't of Educ., Appeal No. 15-040 [reversing the IHO's finding that the district's school location letter, sent approximately two weeks prior to the beginning of the school year, was untimely]).  While the parent may not believe that two weeks "was [] a significant amount of time in which to consider the appropriateness of the assigned public school prior to the beginning of the 20[24-25] school year, it is not a basis for finding a denial of a FAPE" (Application of the Dep't of Educ., Appeal No. 15-040, citing S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 [S.D.N.Y. Nov. 9, 2011] [finding that even if the notice of the assigned public school site was "untimely, it did not interfere with the provision of a FAPE or the [p]arents' opportunity to participate because . . . [p]arents have no right to visit a proposed school or classroom before the recommendation is finalized or prior to the school year."]).

C. February 2024 IEP

1. The Student's Needs

In addition to the claims discussed above, the parent's appeal presents several challenges to the substantive adequacy of the February 2024 IEP.  A brief discussion of the student's needs, as known to the February 2024 CSE, will provide the context needed to review whether the February 2024 IEP offered the student a FAPE.

According to the February 2024 IEP, the CSE relied on the following evaluative information included in an iBrain educational plan dated January 30, 2024: Brigance assessment, administered in August and December 2023; Dynamic AAC Goals Grid 2 (DAGG-2), administered in December 2023; Pediatric Evaluation of Disability Inventory (PEDI), administered December 2023; the Northern Ireland Curriculum called Quest Maps Learning and Assessment Tool for Profound and Multiple Disabilities; Functional Independence Measure (FIM); the DAGG-2, administered in January 2024; and Wisconsin Assistive Technology Initiative (WATI), administered in January  2024 (Dist. Exs. 1 at p. 1; 5 at p. 1).  The CSE also considered the student's progress, as reported in the January 2024 educational plan and two quarterly progress reports from iBrain; vocational assessments from the parent and the student; parental concerns; and feedback from the iBrain staff who attended the CSE meeting (see Dist. Exs. 1 at pp. 1-19, 54-56; 3 at p. 5; 5 at pp. 1-39; 8; 9; 12 ¶ 8; Parent Exs. D; E).

According to the information available to the February 2024 CSE, the student had received diagnoses of cerebral palsy, dysphagia, aphasia, visual impairment, auditory impairment, and severe developmental delay (Dist. Exs. 1 at p. 1; 5 at p. 41).  At the time of the CSE meeting, the student attended iBrain, where, in addition to academic instruction in a 6:1+1 classroom, she received 1:1 paraprofessional support, OT, PT, speech-language therapy, assistive technology, music therapy, and vision services (Dist. Exs. 1 at pp. 1-19; 5 at pp. 65-66).

The February 2024 IEP described the student as a "very determined and smart . . . young woman who [wa]s nonverbal"; semi-ambulatory; and "present[ed] with significant deficits in cognitive, adaptive, communicative, and physical development" (Dist. Ex. 1 at pp. 1, 21).  The student communicated "using two mid-tech, voice output switches," programed with "yes/no" in Spanish; gestures/body language; vocalizations; and, occasionally, facial expressions (id. at p. 3).    The student was "dependent on [adults for] all self-care/hygiene tasks, transfer[s], mobility[,] dressing, feeding, and all other activities of daily living" (id. at p. 9).  The student could assist with donning and doffing her shirt, jacket, and pants; and, at home, she independently doffed her clothing while in bed (id. at p. 10).  The student did not tolerate wearing shoes; required hand over assistance or total assistance with fasteners; wore diapers for toileting; and indicated when she needed the diaper changed (id.).  The student received all nutrition through a bottle during the school day and would "hold the bottle [to] feed herself when it [wa]s presented to her" (id. at pp. 11-12).  The student "utilize[d] a manual tilt-in-space wheelchair" for mobility (id. at p. 13).  While the student "require[d] minimal handheld assistance to transfer from her wheelchair to standing," she "typically required maximal assistance" to sit from laying prone due to her "preference for laying prone on [a] mat" (id. at p. 11).

According to the February 2024 IEP, the student "require[d] a high degree of individualized attention to meet [her] daily care needs and therefore require[d] the support of a [] 1:1 paraprofessional" (Dist. Ex. 1 at p. 21).  The IEP reported that the student's paraprofessional assisted her in the following ways: providing information to related service providers on the student's physical and emotional state; determining what may be upsetting the student; assisting with instrument play by holding the instrument; providing assistance with transitions, transfers, functional mobility, and activities of daily living; redirecting attention; supporting the use of adapted devices and assistive technology; and providing verbal encouragement and behavioral redirection (id. at pp. 3-4, 7, 13-14, 16, 18-19, 41-44).

To address the student's significant management needs, the February 2024 CSE recommended the following supports and services in addition to a 1:1 paraprofessional: daily direct instruction; access to augmentative and alternative communication (AAC); materials adapted to visual needs; a small class; limited auditory clutter; adapted toys and activities; multisensory games and activities; two-person assisted transfers in and out of seating systems and mobility devices; repetition of verbal and tactile cues; assistance to initiate and terminate a task; extended processing time; a closed, quiet treatment space for successful introduction of gross motor activity and prevention of distraction; padded walls, floor lined with foam boards to provide safe environment for physical activities; rest breaks; an adapted seating device with a pelvis belt; therapy balls, bolsters, and benches; and a posterior walker for walking program (Dist. Ex. 1 at pp. 20-21).

2. Extended School Day

The parties dispute whether the IHO erred in the finding that the district could have implemented the student's February 2024 IEP without an extended school day and in characterizing the parent's challenge in that regard as speculative.  The parent contends that the district could not have implemented 18 hours of related services per week, as recommended in the February 2024 IEP, within a regular school day.  The district contends that the student did not need an extended school day, citing the school psychologist's testimony that the district could have delivered the student's related services on a push-in basis.  The parent acknowledges that the student's IEP allowed for delivery of related services on a push-in or pull-out basis; but, according to the parent, the student's management needs, which reflect the need for "'limited auditory clutter[]' and a 'closed, quiet treatment space," preclude push-in services (Req. for Rev. at p. 5).

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., 793 F.3d at 244]; 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]).

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

The February 2024 IEP recommended 18 hours per week of related services as follows: five 60-minute sessions per week of individual OT; five 60-minute sessions per week of PT; two 60-minute sessions per week of individual vision education services; five 60-minute sessions per week of individual speech-language therapy; one 60-minute session per week of individual assistive technology services (Dist. Exs. at pp. 45-46; 3 at p. 2).  As the parties concur, the February 2024 IEP recommended delivery of related services either in a separate location or in the student's classroom, at the provider's discretion (Tr. pp. 139-40; Dist. Ex. 1 at pp. 45-46).  Consistent with the parent's assertion, the IEP also included "limited auditory clutter" and a "closed, quiet treatment space" in the management needs section (Dist. Ex. 1 at p. 20).  Upon closer review, however, the IEP divided the supports and services for the student's management needs into the following categories: "academic;" "social development;" and "physical development" (id. at pp. 20-21).  The IEP recommended "limited auditory clutter" under the social development category; and the IEP recommended a "closed, quiet treatment space for the successful introduction of the gross motor activity and prevention of distraction" under the physical development category (id. at p. 20).

Contrary to the parent's contention, the aforementioned recommendations, intended to support the student's management needs in the areas of social and physical development, do not preclude the student's participation in speech-language therapy, OT, or other services on a "push-in" basis.  Indeed, the iBrain educational plan, upon which the CSE relied in developing the student's IEP, stated that, rather than pulling the student out of the classroom, the speech-language therapist worked with the student in a separate area of the classroom or during academic instruction (Dist. Exs. 1 at pp. 1-3; 5 at p. 4; 12 ¶ 8).  The iBrain educational plan further indicated that the student received both push-in and pull-out sessions of OT and PT (see Dist. Exs. 1 at pp. 14, 19; 5 at pp. 30, 36). [22]  Thus, while the student may have needed pull-out sessions of PT to introduce gross motor activity without distraction, the assigned school could have accommodated the majority of the recommended services by pushing into the student's classroom during the regular school day (see Dist. Ex. 1 at pp. 20, 45).

Accordingly, the hearing record provides no basis to disturb the IHO's finding that the district could have implemented the student's IEP, as written, without an extended school day (see, e.g., Cruz v. Banks, 134 F.4th  687, 693 [2d Cir. 2025] [affirming the SRO's determination that the assigned school could have implemented the student's "IEPs without an extended school day because many of his related services could have occurred simultaneously with his schooling"]; Application of a Student with a Disability, Appeal No. 22-055 [finding that the assigned school could have implemented "18 hours of related services per week . . . without an extended school day because a majority of the student's recommended related services could have been accommodated by pushing into the student's classroom"]).

3. Nursing Services

The parties also dispute whether the IHO erred in finding that the February 2024 IEP appropriately addressed the student's health management needs.  The parties agree that the student did not require 1:1 nursing services; but the parent contends that the district should have recommended access to a school nurse as a related service.[ 23]  According to the parent, the IHO erred in relying on testimony from the school psychologist that all schools have nurses, as the witness testified that she had no knowledge of the nursing staff at the recommended school and, even if accurate, such retrospective testimony cannot be used to cure deficiencies in the IEP.  The district argues that, according to the evidence in the hearing record, the student's medical need was not for in-school medication administration, but for feeding support.  According to the district, the IEP sufficiently addressed the student's need for feeding support, noting that, under iBrain's own educational plan, a paraprofessional would administer the student's feedings.

Generally, a student who needs school health services [24] or school nurse services [25] to receive a FAPE must be provided such services as indicated in the student's IEP (see School Health Services and School Nurse Services, 71 Fed. Reg. 46,574 [Aug. 14, 2006]; see also 34 CFR 300.34[a], [c][13]; 8 NYCRR 200.1[qq], [ss]; Cedar Rapids Community Sch. Dist. v. Garret, 526 U.S. 66, 79 [1999] [indicating that school districts must fund related services such as continuous one-on-one nursing services during the school day "in order to help guarantee that students . . . are integrated into the public schools"]).  State guidance indicates that, in determining whether a student needs a 1:1 nurse, a CSE must obtain evaluative information in all areas of the student's disability or suspected disability; generally, it is expected that "[t]his information may include information from a physician, such as a written order to the school nurse from a student's health care provider" ("Guidelines for Determining a Student with a Disability's Need for a One-to-One Nurse," at p. 2, Office of Special Educ. Mem. [Jan. 2019], available at https://www.nysed.gov/sites/default/files/programs/special-education/guidelines-for-determining-a-student-with-a-disability-need-for-a-1-1-nurse.pdf).  In providing school nurse services, "the school remains responsible for the health and safety of the student and ensuring the care provided to the student is appropriate and done in accordance with healthcare provider orders" ("Guidelines for Determining a Student with a Disability's Need for a One-to-One Nurse," at p. 5).  However, there is also State guidance indicating that "[i]f the CSE/CPSE determine that a student's health needs in accordance with provider orders for treatment can be appropriately met by the school's building nurse, a shared nurse, [or] a 1:1 aide to monitor and alert the school nurse, then a 1:1 nurse is not necessary" ("Provision of Nursing Services in School Settings - Including One-to-One Nursing Services to Students with Special Needs," at pp. 11-12, Office of Student Support Servs., [Jan. 2019], available at https://www.p12.nysed.gov/sss/documents/OnetoOneNSGQAFINAL1.7.19.pdf).  To determine whether a student requires the support of a full-day, continuous 1:1 nurse, State guidance indicates the CSE "must weigh the factors of both the student's individual health needs and what specific school health and/or school nurse services are required to meet those needs" and provides the following set of factors to consider when making that determination:

• The complexity of the student's individual health needs and level of care needed during the school day to enable the student to attend school and benefit from special education;
• The qualifications required to meet the student's health needs;
• The student's proximity to a nurse;
• The building nurse's student case load; and,
• The extent and frequency the student would need the services of a nurse (e.g., portions of the school day or continuously throughout the day).

("Guidelines for Determining a Student with a Disability's Need for a One-to-One Nurse," at pp. 2-3).

According to testimony from the school psychologist, the CSE did not recommend nursing services for the student due to late receipt of medical accommodation forms from the parent (see Tr. pp. 196-203, 207; Dist. Ex. 12 ¶ 14).  The school psychologist explained that the district's Office of Student Health would review the forms, consult with the student's physician, and provide clarity to assist the CSE in making its recommendations (see Tr. pp. 196-203).  The school psychologist testified that the forms could not be reviewed before the February 2024 CSE meeting because the parent submitted them to the district on the day of the meeting (see Tr. pp. 196-203, 207; Dist. Ex. 12 ¶ 14).  According to the school psychologist, the forms required updating each school year, as the student's medical needs may change from year to year; but the forms submitted in February 2024 were completed by the student's physician for the 2023-24 school year (see Tr. pp. 196-198; Dist. Ex. 10).  The school psychologist also testified that "all schools have nurses in them"; that, even if not included in the IEP, all students would have access to the school nurse; that the student's paraprofessional could consult with the school nurse as needed; and that "the school nurse could facilitate the receipt of any necessary medical forms to ensure" that, if needed, medical needs could be added to the student's IEP (Tr. p. 181).

The medical accommodation forms submitted to the district in February 2024 are included in the hearing record (Dist. Ex. 10).  Upon review, the forms indicated that the student had no documented allergies, diabetes, or seizures and required no medication during school hours (id. at pp. 1, 3-4).  Pertinently, the forms indicated that the "treatment required in school" consisted of 16 ounces of "ENSURE, MILK, BOOST OR MILK FIBRE ENRICHED" three times per day by mouth (Dist. Ex. 10 at p. 4).  The forms asked the physician to select the student's skill level as "Nurse-Dependent Student: nurse must administer treatment," "Supervised Student: student self-treats under adult supervision," or "Independent Student: student is self-carry/self-treat;" and the physician selected "Nurse-Dependent Student" (id.).

Upon further review, however, the forms provided incomplete and contradictory information regarding the student's medical needs during school hours.  One page indicated the student's need for supervision and continuous monitoring during school hours but not during transport (Dist. Ex. 10 at p. 2).  Yet, another page indicated the student's need for pulse oximetry monitoring during transport, on school-sponsored trips, and during afterschool programs (id. at p. 4).  Multiple areas of the forms were left blank (id. at pp. 1-4); and the forms did not indicate that the student used a wheelchair, as indicated in the February 2024 IEP (compare Dist. Ex. 1 at pp. 2, 3, 9, 12-16, 18, 51, 54, with Dist. Ex. 10 at p. 2).

Moreover, iBrain's January 2024 educational plan, which the CSE used in developing the February 2024 IEP, stated that "the paraprofessional and the supportive team will provide care and nutrition via the scheduled feedings" (Dist. Ex. 5 at p. 45). [26]  The January 2024 educational plan reported that the student took "all nutrients through a commercialized infant bottle" and, when presented with the bottle, held it to feed herself (id. at p. 15).  As compared to iBrain's June 2024 educational plan, in which a school nurse was listed as a service recommendation, the January 2024 educational plan did not list a school nurse as a service recommendation (compare Dist. Ex. 5 at p. 64, with Parent Ex. C at p. 65).

In accordance with iBrain's January 2024 educational plan, the February 2024 CSE "recommended an individual paraprofessional to support the student's health, safety, ambulation, and feeding" needs (Dist. Ex. 12 ¶ 14; compare Dist. Exs. 5 at pp. 41-45, with 1 at p. 46).  The February 2024 IEP included a speech-language therapy annual goal for the student to "tolerate the highest level of oral intake with the use of safe swallow strategies . . . and engage in an oral hygiene regimen with no overt s/s penetration or aspiration given moderate multimodal cues in order to facilitate safety with current diet" (Dist. Ex. 1 at p. 33).  That goal included the following short-term objective: the student's "caregivers and/or paraprofessional will demonstrate appropriate understanding of compensatory feeding/swallowing strategies and oral hygiene routine/instructions in order to ensure carryover and generalization of skills targeted in session and safe swallowing to decrease the risk of aspiration/penetration" (id.).  Additionally, the February 2024 IEP included an annual goal for the paraprofessional to "consistently consult with the school nurse regarding close monitoring of [the student's] medical needs and [] ensure that [the student's] toileting, feeding, and ambulation needs [wer]e addressed" (Dist. Ex. 1 at p. 43).  That goal included short-term objectives for the paraprofessional to ensure all feeding and aspiration precautions were followed (id.).

The district has a responsibility to ensure that the individuals who can make appropriate decisions are a part of the CSE process (see 34 CFR 300.321[a]; 8 NYCRR 200.3[a]), and the district may not delegate its responsibilities to the student under IDEA to the parent (see 34 CFR 300.304[b]-[c]; 8 NYCRR 200.4[b]; A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]).  Nevertheless, the CSE can only make recommendations based upon the information available at the time of the meeting (see R.E., 694 F.3d at 186 [holding that an "IEP must be evaluated prospectively as of the time of its drafting"]; C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 [S.D.N.Y. Dec. 23, 2013] [stating that "a substantively appropriate IEP may not be rendered inadequate through testimony and exhibits that were not before the CSE about subsequent events"]).  Altogether, the information available to the CSE at the time of the February 2024 meeting, inclusive of the July 2023 medical accommodation forms, indicated that the student required supervision and feeding support from an adult, but not necessarily from a nurse (see Dist. Exs. 5 at pp. 41-45; 10).  The February 2024 IEP addressed those needs with the recommendation of a full-time 1:1 paraprofessional, as well as annual goals and short-term objectives that targeted safe feeding and called for consultation with the school nurse (see Dist. Ex. 1 at pp. 33, 43, 46).

Based on the foregoing, the hearing record supports the IHO's determination that the February 2024 IEP appropriately addressed the student's health management needs (cf. Application of a Student with a Disability, Appeal No. 20-139 [finding that the district's failure to recommend 1:1 nursing services denied the student a FAPE where the student was "trachea dependent for breathing;" "G-tube dependent for nutrition;" and required multiple medications]).

4. Transportation Services

Finally, the parties dispute whether the IHO erred in finding that the recommended special transportation accommodations were sufficient.  According to the parent, the student needed air conditioning and limited travel time in addition to a lift bus and transportation paraprofessional services.  The parent argues that the district relied on iBrain's educational plan, which recommended air conditioning and limited travel time, in developing the student's IEP but failed to explain its rejection of such recommendations.  The district argues that, according to the school psychologist's testimony, the CSE did not recommend air conditioning or limited travel time because there was no basis in the documentation before the CSE to make such recommendations.  According to the district, neither the parent's conclusory assertion nor iBrain's educational plan support the student's need for air conditioning and limited travel time as transportation accommodations.

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]).

Upon review, the hearing record supports the district's contention that no information before the February 2024 CSE indicated the student's need for an air-conditioned bus and limited travel time as transportation accommodations.  The January 2024 educational plan recommended air conditioning and limited travel time without explaining the need for such accommodations (see Dist Ex. 5 at p. 65). [27]  The health plan portion of the document did not indicate a medical need for either limited travel time or a certain ambient temperature within the student's environment (see id. at pp. 41-45).  The medical accommodation forms submitted to the district did not indicate the need for any particular transportation accommodation aside from the possible need for supervision during transport (see Dist. Ex. 10 at pp. 2, 4).  As described above, the forms were inconsistent and unclear in terms of the student's need for medical supervision during transport (see id.); and the IEP provided for supervision from a paraprofessional during transport (Dist. Ex. 1 at p. 51).  [28]

Although the February 2024 CSE relied on reports from iBrain, it was not required to adopt wholesale the recommendations contained therein (see Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 [2d Cir. 2018], citing T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993]; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004] [noting that even if a district relies on a privately obtained evaluation to determine a student's levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator], aff'd, 142 Fed. App'x 9 [2d Cir. July 25, 2005]).  Accordingly, the hearing record provides no basis to disturb the IHO's finding that the February 2024 IEP provided sufficient transportation accommodations (see, e.g., Application of a Student with a Disability, Appeal No. 25-113 [finding that the district's special transportation recommendations "were sufficient to offer the student a FAPE without air conditioning and limited travel time" where no information "before the . . . CSE indicated that a lack of air conditioning or a lack of a limited travel time would have caused a safety concern for the student"]).

VII. Conclusion

In conclusion, I decline to review whether the omission of bilingual services from the February 2024 IEP deprived the student of a FAPE, as that issue was outside the scope of the impartial hearing.  I likewise decline to review whether the omission of music therapy from the February 2024 deprived the student of a FAPE, as the parent's request for review failed to sufficiently preserve that issue for review on appeal.  As for the remaining issues presented on appeal, the hearing record provides no basis to overturn the IHO's determination that the district offered the student a FAPE for the 2024-25 school year.  Thus, the necessary inquiry is at an end, and I need not reach the issues of whether iBrain was an appropriate unilateral placement or whether equitable considerations support the parent's request for relief (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.