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 in part her request for funding of the costs of her son's transportation and nursing services for the 12-month, 2024-25 school year.  Respondent (the district) cross-appeals from those portions of the IHO's decision which determined pendency, which found that the International Academy of the Brain (iBrain) and related services were an appropriate unilateral placement for the student for the 12-month, 2024-25 school year.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The student in this matter began attending iBrain during the 2018-19 school year (Parent Exs. A at p. 3; A-C at p. 2).[1]  Since that time, the student has been the subject of four prior State-level administrative proceedings related to the student's educational programming for the 2018-19, 2019-20, 2023-24, 2024-25 school year and to the parent's previous unilateral placement of the student at iBrain (see Application of a Student with a Disability, Appeal No. 24-419; Application of a Student with a Disability, Appeal No. 23-302; Application of a Student with a Disability, Appeal No. 21-012; Application of a Student with a Disability, Appeal No. 19-060).  Accordingly, the parties' familiarity with the facts and procedural history preceding the current matter—as well as the student's educational history—is presumed and will not be repeated here unless necessary to resolve the issues in this matter.

The student has received diagnoses of cerebral palsy, acquired brain injury due to seizure disorder, intraventricular hemorrhage, short gut syndrome with necrotizing enterocolitis with bowel resection, the presence of a "brain cyst," optic atrophy, and asthma and is nonverbal, non-ambulatory and gastrostomy tube (G-tube) dependent (Parent Exs. C at pp. 1-2, 17; D at pp. 1, 43, 52; Dist. Ex. 9 at p. 1).

As relevant to the parties' current dispute, a CSE convened on February 7, 2024 to conduct the student's annual review and to develop an IEP for the 12-month, 2024-25 school year (see Parent Ex. C; District Exs. 2; 4).[2]  The CSE determined that the student was eligible for special education and related services as a student with a traumatic brain injury (TBI) (Parent Ex. C at p. 1).

The February 2024 CSE recommended the student receive 12-month services consisting of a 12:1+(3:1) special class, three periods per week of adapted physical education, five 60-minute sessions per week of individual occupational therapy (OT), five 60-minute sessions per week of individual physical therapy (PT), four 60-minute sessions per week of individual speech-language therapy, one 60-minute session per week of speech-language therapy in a group (3:1), and three 60-minute sessions per week of individual vision education services, as well as full-time individual health paraprofessional services (Parent Ex. C at pp. 48-49).  The February 2024 CSE further recommended one 60-minute session per month of parent counseling and training in a group (id. at p. 48).  In addition, the CSE recommended assistive technology devices and one 60-minute session per week of individual assistive technology services (id. at p. 49).  The CSE also recommended special transportation services consisting of transportation from the closest, safe curb location to the school; 1:1 paraprofessional services during transportation; a lift bus; and wheelchair (id. at pp. 53-54).

By 10-day notice dated June 10, 2024, the parent, through her attorney, advised the district of her rejection of the recommendations of the February 2024 CSE and of the public school site to which the student had been assigned (Parent Ex. A-A at pp. 1-2).[3]  The parent stated that she remained "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]" (id. at p. 2).  The parent "continue[d] to request [i]ndependent [e]ducation[al] [e]valuations (IEEs) of the [s]tudent" and requested that the CSE reconvene to develop an appropriate program once the IEEs were completed (id. at pp. 1, 2).  The parent concluded by asserting that she had no choice other than to re-enroll the student at iBrain for the 12-month, 2024-25 school year and seek public funding for the cost of the student's attendance (id. at p. 2).  

By prior written notice dated June 11, 2024, the district summarized the recommendations of the February 2024 CSE, and noted that the CSE had discussed the need for updated medical administration forms and transportation accommodation forms (Dist. Ex. 5 at pp. 1-5).[4]  On June 11, 2024, the district notified the parent of the public school site to which the student had been assigned for the 12-month, 2024-25 school year (id. at p. 7).

On June 20, 2024, the parent electronically signed a school transportation annual service agreement with Sisters Travel and Transportation Services, LLC (Sisters) for the period of July 2, 2024, through June 27, 2025 (Parent Ex. A-F at pp. 1, 6-7).  On June 20, 2024, the parent also electronically signed a nursing service agreement with B&H Health Care Services, Inc. - DBA Park Avenue Home Care (B&H) from July 2, 2024, through June 27, 2025 (Parent Ex. A-G at pp. 1, 7-8).

On June 24, 2024, the parent electronically signed an annual enrollment contract with iBrain for the student's attendance from July 2, 2024, through June 27, 2025 (Parent Ex. A-E at pp. 1, 6-7).

The parent, through her attorneys, filed a due process complaint notice dated July 2, 2024 related to the 2024-25 school year in which the parent alleged that the district denied the student a free appropriate public education (FAPE) and, among other things, sought an immediate resolution session to address the parent's concerns (see Application of a Student with a Disability, Appeal No. 24-419).  However, that proceeding was dismissed by an IHO (IHO I) on August 20, 2024 due to the parent's failure to participate in the resolution process (id.)

A. Due Process Complaint Notice

Prior to appealing the IHO I's August 20, 2024 decision, the parent filed another due process complaint notice dated August 22, 2024 and again alleged that the district denied the student a FAPE for the 12-month, 2024-25 school year (Parent Ex. A at p. 1).  The parent invoked the student's right to pendency and asserted that the student's pendency services were based on an unappealed February 8, 2024 SRO decision (see Application of a Student with a Disability, Appeal No. 23-302) (id. at p. 2).  Specifically, the parent contended that the student was entitled to direct funding for the costs of the student's base tuition, supplemental related services fees, transportation services, and nursing services as pendency (id.; see Parent Ex. A-C at p. 19).

Regarding the denial of FAPE for the student's 12-month, 2024-25 school year, the parent asserted numerous procedural and substantive violations of IDEA by the district (see Parent Ex. A at pp. 5-7).  Specifically, the parent claimed that that the district failed to provide her with a school location letter; recommended an inappropriately large class size; failed to evaluate the student in all areas of suspected disability, including updated psychoeducational or neuropsychological testing and music therapy; failed to recommend appropriate related services for the student such as a daily 1:1 nurse, music therapy, and appropriate transportation services including limited travel time, porter service, air conditioning, and a 1:1 travel nurse; denied the parent meaningful participation in the IEP process through its failure to timely notify the parent of its final recommended placement through a prior written notice and/or a school location letter; and predetermined the outcome of the student's IEP disregarding the recommendations from the student's teacher and providers (id.).[5]  

As relief for the alleged denial of FAPE for the 12-month, 2024-25 school year, the parent sought an order directing payment to iBrain for the cost of full tuition for the 12-month, 2024-25 school year, including a 1:1 paraprofessional; directing payment of special education transportation services with limited travel time, a 1:1 transportation nurse, air conditioning, a lift bus, a regular wheelchair, and porter service; directing payment of 1:1 nursing services; reconvening a new IEP meeting; and directing the district to fund an independent neuropsychological evaluation for the student. (Parent Ex. A at p. 8).

B. Impartial Hearing Officer Decision

A prehearing conference was held on October 9, 2024, before a different IHO (the IHO) with the Office of Administrative Trials and Hearings (OATH) (Oct. 9, 2024 Tr. pp. 1-13).[6]  According to the IHO's November 18, 2024 interim decision on pendency, a pendency hearing was held on October 18, 2024 (Interim IHO Decision at p. 2).[7]  The IHO determined that the student's pendency services were in accordance with an unappealed February 8, 2024 SRO decision, which awarded the student funding for the costs of his attendance at iBrain, including base tuition, supplemental related services, nursing services, and transportation services (id. at p. 5; see Parent Ex. A-C at p. 19).

The parties reconvened on November 25, 2024 for an impartial hearing, which concluded on December 10, 2024, after two days of proceedings (Nov. 25, 2024 Tr. pp. 13-168; Dec. 10, 2024 Tr. pp. 1-38).  In a decision dated March 4, 2025, the IHO found that the district failed to offer the student a FAPE for the 12-month, 2024-25 school year due to: the district's failure to establish that it actually mailed the student's school location letter or prior written notice identifying the student's 2024-25 assigned public school site after the parent testified that she had not received it; the CSE's failure to recommend 1:1 nursing on the student's February 7, 2024 IEP, notwithstanding evidence of the student's clear medical needs; and the CSE's recommendation of an "inappropriately large classroom ratio" (IHO Decision at pp. 16-19).  While the IHO did not find that the CSE's failure to recommend music therapy resulted in a denial of FAPE, the IHO granted the parent's request for an independent neuropsychological evaluation and an assistive technology evaluation to be conducted by the district (id. at pp. 19, 26-28 & n.4).  The IHO determined that the parent clearly requested an IEE in her due process complaint notice and stated her disagreement with the district's evaluations (id. at p. 28).

With respect to the second Burlington/Carter criterion, the IHO found that the parent met her burden of demonstrating the appropriateness of iBrain, notwithstanding testimony from both the parent and iBrain's deputy director that the student had been hospitalized or homebound for a significant portion of the 2023-24 school year and had been continuously hospitalized or homebound from April or May 2024 and throughout the impartial hearing in November and December 2024 (IHO Decision at pp. 12, 20-22; see Nov. 25, 2024 Tr. pp. 112-13, 134-39; Dec. 10, 2024 Tr. p. 21).  According to the IHO, the weight of the evidence established that "the [s]tudent's individual special education needs [we]re being addressed by [iBrain] and that the instruction offered [wa]s 'reasonably calculated to enable the child to receive educational benefits'" (IHO Decision at p. 22).

The IHO next addressed equitable considerations, which resulted in reductions to the amount of funding the parent requested for transportation and nursing services (IHO Decision at pp. 22-26).  Specifically, the IHO found that the parent acted unreasonably to the extent she did not mitigate her obligations under the agreements with the nursing agency and transportation provider given the parent's knowledge of the student's hospitalizations (id. at pp. 25-26, 28-29).

As relief, the IHO ordered the district:  (1) to fund the student's tuition at iBrain for 12-month 2024-25 school year in the amount of $346,088.80; (2) to fund the student's round-trip transportation services to and from iBrain from December 10, 2024 through June 27, 2025, which were actually provided; (3) to fund the student's 1:1 nursing services provided during the 12-month 2024-25 school year that the student actually received; (4) to fund an independent neuropsychological evaluation; and (5) to conduct an assistive technology evaluation (IHO Decision at pp. 30-31).

IV. Appeal for State-Level Review

The parent appeals and asserts that although the IHO determined that the district denied the student a FAPE for the 12-month, 2024-25 school year, the IHO erred in failing to find that the district denied the student a FAPE based on the CSE's failure to recommend music therapy, vision education services, appropriate transportation services, and extended school day services.  The parent also argues that equitable considerations did not warrant a reduction in her requested relief.  Specifically, the parent asserts that the IHO erred in finding that she acted unreasonably by failing to mitigate her obligations under the transportation and nursing agreements and by reducing the award for the student's transportation services and nursing services to only those services actually received by the student during the 12-month, 2024-25 school year.  The parent argues that the terms of the agreements expressly require the parent to pay for the service regardless of whether the student attended school in-person on a particular day, and the parent could not have predicted if or when the student would be hospitalized and/or able to return to in-person attendance.  The parent further contends that the district does not dispute that the student required special transportation services and had the district offered the student a FAPE and provided the services, it would have incurred costs on the days the student was absent.  As relief, the parent requests a finding of a denial of a FAPE on additional grounds, that the IHO's findings related to equitable considerations be reversed and that the district be directed to fully fund the costs of the student's nursing and transportation services pursuant to the terms of the agreements.

In an answer and cross-appeal, the district alleges that the IHO erred in finding that the student's unilateral placement at iBrain was appropriate.  The district further alleges that the IHO erred in awarding the parent funding for the student's tuition, transportation services, and nursing services because equitable considerations weigh against the parent.  Specifically, the district asserts that the parent could have sought to terminate, or at least amend agreements in light of the fact that the student was hospitalized during the 2024-25 school year.

As to its cross-appeal, the district argues that the IHO's November 18, 2024, interim decision on pendency should be modified.  The district contends that it was ready and able to provide the student with special transportation beginning on August 29, 2024.  The district asserts that the offer of special transportation was communicated to the parent and her representative, and that the district should not be required to fund private special transportation services under pendency.  Lastly, the district contends that the IHO erred in granting the parent's request for an IEE because the parent failed to identify any specific evaluation, with which, she disagreed.  As relief, the district requests reversal of all of the IHO's ordered relief, modification of the IHO's interim decision on pendency and dismissal of the parent's request for review.

In an answer to the district's cross-appeal, the parent alleges that the district failed to properly state a claim for relief related to the unilateral placement; that equitable considerations favor the parent as the school denied the student a FAPE; and that the parent disagreed with the district's lack of updated testing for the new school year and failure to conduct a triennial psychological assessment. The parent further asserts that the district's cross-appeal of the IHO's November 18, 2024 interim decision on pendency is untimely and that no modification of the interim decision is warranted because the district cannot meet the Office of Pupil Transportation's stringent requirements for transportation.

In a reply, the district argues that its cross-appeal of the IHO's interim decision on pendency is timely.

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

A. Scope of Impartial Hearing and Review

In her request for review, the parent asserts that the IHO correctly found that the district failed to offer the student a FAPE for the 12-month, 2024-25 school year, however, she seeks findings of a denial of  FAPE on several additional bases,  alleging that the IHO erred in failing to find that the student was denied a FAPE due to the CSE's failure to recommend music therapy, vision education services, appropriate transportation services and an extended school day.  At the outset, I note that the parent's August 22, 2024 due process complaint notice asserted that the February 2024 CSE recommended vision education services as a related service and did not allege that the February 2024 CSE failed to recommend vision education services (Parent Ex. A at p. 5).  Thus, that claim was not even in the due process complaint notice after a generous reading and I decline to consider it further for the first time on appeal since it was outside the scope of the impartial hearing (Parent Exs. A at p. 5; C at p. 49; see Erde v. Carranza, 2024 WL 4989225, at *3 [E.D.N.Y. Dec. 5, 2024] affm'd 2025 WL 3295110, at *1 [2d Cir. Nov. 26, 2025]).

With regard to appropriate transportation services and extended school day services, the parent alleged that the student required air conditioning, limited travel time, porter services and a 1:1 nurse for transportation; and that the student could not receive all of his recommended special education and related services without an extended school day (Parent Ex. A at pp. 5, 6, 7).  Additionally, the parent alleged that the failure to recommend music therapy resulted in a denial of a FAPE to the student (id. at p. 7).[9]

Turning to these remaining claims that the IHO erred in failing to find that the district's failure to recommend music therapy, appropriate transportation and extended school day services denied the student a FAPE, the district does not cross-appeal from the IHO's finding that the district failed to offer the student a FAPE for the 12-month, 2024-25 school year.  Consequently, the IHO's determination has 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]).  Therefore, it is not necessary to further review whether the district failed to provide  music therapy, appropriate transportation, or extended school day services raised in the parent's request for review as alternative bases upon which to conclude that the district failed to offer the student a FAPE for the 12-month, 2024-25 school year, and as such, those issues will not be further addressed in this decision.  Lastly, neither party has appealed from the IHO's order directing the district to conduct an assistive technology evaluation of the student.  Accordingly, the IHO's order has also become final and binding on the parties and will not be further reviewed on appeal.

B. Unilateral Placement

In its cross-appeal, the district argues that the IHO erred in finding that iBrain was an appropriate unilateral placement for the 12-month, 2024-25 school year.  The district further argues that the student could not have made progress during the 12-month, 2024-25 school year due to the student's ongoing hospitalization and the subsequent period when the student was homebound.

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

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

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

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

In her decision, the IHO found that the educational plan developed by iBrain, which was never implemented due to the student's unavailability for instruction, would have been appropriate, if implemented, when the student was able to return to school (IHO Decision at p. 21).  In reviewing her analysis, it is clear that the IHO did not consider whether the iBrain educational plan accurately described the student at the time it was developed, and she did not grapple with the educational plan's January 17, 2025 implementation date.  The IHO did not consider that the educational plan did not recommend any special education or related services for the student from the beginning of the 12-month, 2024-25 school year through January 17, 2025.  Further, the iBrain educational plan did not contemplate the student's need for home or hospital instruction.  Although the parties do not dispute the student's needs and instead focus their arguments on the student's attendance—which is relevant to a discussion of equitable considerations—review of the hearing record demonstrates that the student's needs as set forth in the iBrain educational plan differed dramatically from the description of the student provided by the parent's witnesses in their testimony on cross-examination.  Nevertheless, the student's needs as stated in the iBrain educational plan and a discussion of the testimony of the parent's witnesses concerning the student's condition during the 12-month, 2024-25 school year is necessary to determine whether the recommendations in the iBrain educational plan addressed the student's unique needs and were reasonably calculated to confer educational benefit.  

1. Student's Needs

According to the June 13, 2024 iBrain educational plan (iBrain plan), the student was an outgoing and sociable fourteen-year-old, and, notably, the plan indicated that he was "currently attending a 6:1+1 class, with a paraprofessional and a 1:1 nurse at [i]Brain" (Parent Ex. D at p. 1).  The student had received diagnoses of acquired brain injury due to seizure disorder and optic atrophy resulting in legal blindness (id. at pp. 1, 43). The iBrain plan reported that the student was non-verbal, non-ambulatory, and "NPO (nothing by mouth)" as he, at that time, relied on a G-tube to receive all nutrition and hydration (id. at pp.  32, 43, 52).  The student's brain injury resulted in severe impairments in cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, sensory, perceptual, and motor abilities, psycho-social behavior, physical functions, information processing and speech; however, per the iBrain plan given the appropriate support and modifications, the student could learn and excel (id. at p. 49).

The iBrain plan stated that the student required "maximal" or "total" assistance for all activities of daily living (ADLs) (e.g., dressing, toileting, and grooming) and for functional mobility and navigation of all environments (Parent Ex. D at pp. 34-35, 37).   The student used a wheelchair and required assistance for all transfers, including initiation of movement (id. at p. 9). According to the June 2024 iBrain plan, the student required a 1:1 nurse who managed the student's medical needs, administered emergency medication, monitored for seizure activity, managed "g-tube feeds" daily, maintained the student's G-tube site (which was prone to leakage), and assisted with the management of oral secretions (id. at pp. 35, 37, 40).  The plan also indicated that student also required a 1:1 paraprofessional to navigate his environment, ensure his safety, and complete all self-care activities including diapering, changing clothes and grooming tasks (id. at p. 40).

In the area of academics, the iBrain plan stated that the student used double panel switches to confirm his answer choices from a field of two or three and required minimal support to answer most yes/no questions (Parent Ex. D at p. 11).  The iBrain plan reported the student was working on identifying a specific letter in the alphabet from a field of three choices, using his augmentative alternative communication (AAC) device, with minimal support of one to five cues (id. at p. 11).  Further, the iBrain plan reflected that the student was working on identifying numbers up to two and demonstrating 1:1 correspondence with moderate support of six to eight cues (id. at pp. 11-12).

With respect to speech and language functioning, the iBrain plan reported that the student enjoyed music from multiple artists of various genres, books, and participating in craft activities, as well as socializing with staff and students (Parent Ex. D at p. 21).  The iBrain plan stated that the student communicated through the use of a total communication approach consisting of vocalizations, facial expressions, mid tech AAC systems, and switches to express his wants, needs, likes and dislikes, and to gain information from others (id. at p. 22).  However, the student required verbal and tactile prompting and processing time to orient to switch locations and verbal cues to scan through message choices (id.).  At times, the student's high tone, and/or reflex patterns impacted his ability to control and coordinate the motions necessary to activate the appropriate switches, resulting in an increased need for breaks, cues and extended processing time (id. at p. 23).

The iBrain plan reported that the student demonstrated an interest in social interactions, and that during his classroom's music group he would shift his gaze toward other students and "smile/vocalize in excitement" (Parent Ex. D at p. 29).  The student benefited from help taking turns in conversation and relied on a familiar partner to program pre-recorded messages on his switches, so he had appropriate options for what he wanted to say (id.).

Regarding the student's physical development, the student had low proximal tone and weakness that caused decreased head and trunk control, affecting his posture (Parent Ex. D at p. 38). The student presented with spasticity in his hands, arms and legs that made activities such as reaching, grasping and participating in tasks challenging (see id.). The student's reflex patterns and hypertonicity in all extremities limited his ability to participate in volitional movement (id.). The student sat upright in his wheelchair, although during feeding per nurse advisement, the wheelchair was tipped slightly back (id.).  The iBrain plan noted that, in addition to the wheelchair, the student had equipment needs of bilateral functional hand splints, ankle foot orthosis (AFO's), and various therapeutic equipment to provide opportunities for flexible seating (id. at p. 36).  Due to the student's vision needs, he required use of backlit and high contrast materials, spotlighting techniques, and enlarged materials to support visual attention (id. at p. 10).

According to the June 2024 iBrain plan, during the 2023-24 school year the student had overall health issues and "had multiple prolonged absences this past year for medical reasons leading to limited opportunities to address some benchmarks" (Parent Ex. D at p. 47).  The iBrain plan did identify that the student had a history of hip correction surgery, and due to the student's excess growth spurt in the last year, his gastronomy incision around the stoma area had enlarged causing excessive leakage from the incision site (id. at p. 43).  The iBrain plan reported that this condition made healing difficult and caused the student pain and discomfort, and that the student was scheduled for an incision closing surgery in the upcoming months (id.).  The iBrain plan noted that the student's leaking G-tube caused participation restrictions in all ADLs and that the student could not lay in a prone position due to the leaking G-tube (id. at p. 6).

2. Specially Designed Instruction

To address the student's needs for the 12-month, 2024-25 school year, the June 2024 iBrain plan recommended a 12-month program in a 6:1+1 special class with five 60-minute sessions per week of individual OT, five 60-minute sessions per week of individual PT, four 60-minute sessions per week of individual speech-language therapy, one 60-minute session per week of speech-language therapy in a group, three 60-minute sessions per week of individual music therapy, one 60-minute session per week of music therapy in a group, three individual 60-minute sessions per week of vision education services, and one 60-minute session per week of individual assistive technology training (Parent Exs. D at pp. 83-84; L ¶¶ 13, 16). The iBrain plan included the provision of one 60-minute session per month of parent counseling and training, as well as training for staff in areas of AAC use, use of braces/orthotics, G-tube safety, seizure activity, cortical vision impairment, and direct instruction (Parent Exs. D at pp. 84-85).  Additionally, the iBrain plan recommended that the student receive 1:1 nursing services and 1:1 paraprofessional services on a daily, full-time basis, as well as special transportation accommodations (Parent Exs. D at pp. 83-84; L ¶¶ 15-16).

The June 2024 iBrain plan included an extensive description in the present levels of performance and needs in the areas of cognition, academics, vision, assistive technology, speech-language and communication, pragmatics/social language, AAC, oral motor/feeding, OT, PT, music therapy, self-care skills, ADLs, and management needs (see Parent Ex. D at pp. 1-51).  The iBrain plan also included an individualized healthcare plan that identified the responsibilities of the nurse and/or paraprofessional in addressing intervention needs of the student related to medical administration; respiratory treatments and suctioning; G-tube feeding; monitoring of gastrostomy status; creating an accessible emergency care plan for the student; and maintaining skin care integrity, hygiene, grooming and toileting care (id. at pp. 52-61).  The health care plan stated that "[t]he student's medical problems necessitate that he has skilled nursing both at school and at home since his care taker is his elderly grandmother" (id. at p. 52).  Additionally, the iBrain plan included annual goals and short-term objectives to address the student's identified needs in the areas of academics (literacy, math, social skills), vision education, assistive technology, speech-language therapy, PT, OT, and music therapy, as well as goals for parent counseling and training and for the paraprofessional in working in conjunction with the student and in consultation with the student's teachers, therapists, and nursing staff (id. at pp. 63-80).

In her analysis of the appropriateness of iBrain for the 12-month, 2024-25 school year, the IHO found that the June 2024 iBrain plan was "extremely detailed in its description of the [s]tudent's levels of performance in all relevant domains," and "contain[ed] the [s]tudent's scores on a variety of assessments and significant detail regarding the [s]tudent's health needs" (IHO Decision at p. 20).  The IHO also acknowledged that "[t]he most recent quarterly progress report for the [s]tudent from the [iBrain wa]s dated October 25, 2024, and clearly state[d], repeatedly, that the [s]tudent was absent for medical reasons at the time of the report" (id.).  The IHO stated that "[t]he progress report still list[ed] annual goals, benchmarks, and plan modifications in academic domains, assistive technology, music therapy, OT, PT, [speech-language therapy], vision-noting that reassessments would be conducted upon the [s]tudent's return to school" (id.).  The IHO also found that iBrain "provide[d] the [s]tudent with a small, highly structured educational environment and basically the same related services mandated by the [district]'s IEP, with the main distinction between the two related services programs being [iBrain]'s addition of musical therapy," that iBrain "provide[d] the [s]tudent with a paraprofessional and 1:1 nursing," and that iBrain "provid[ed] the [s]tudent with a small classroom size that comport[ed] with the requirements of [State regulation]" (id. at p. 21).

While "extremely detailed in its description," as further described below, the June 2024 iBrain plan included an inaccurate description of the student's then-current present levels of educational performance, as well as inaccurately stating the student's then-current special class placement.  Further, and as noted above, the June 2024 iBrain plan set forth an implementation date of January 17, 2025, and included no recommended services to be implemented from July 1, 2024 through January 17, 2025 (Parent Ex. D at pp. 1, 83-84).   The June 2024 iBrain plan stated that the student was "[then-]currently attending a 6:1+1 class, with a paraprofessional and a 1:1 nurse at [i]Brain" (Parent Ex. D at p. 1).  However, according to the evidence in the hearing record, at the time of the development of the iBrain plan on June 13, 2024, the student was not attending iBrain at all and was instead hospitalized (Nov. 25, 2024 Tr. pp. 113, 161).  The parent testified that the student had been hospitalized in April or May 2024 and that "they did surgery on him and [the student] was done from then" (Nov. 25, 2024 Tr. p. 161), facts which were markedly understated when indicating that the student "had" multiple prolonged absences during the 2023-24 school year  (Parent Ex. D at p. 47) .  In addition, the deputy director of iBrain (deputy director) provided direct testimony by affidavit in November 2024 that indicated that the student had attended iBrain since the 2018-19 school year and was attending and receiving special education services "every day" from  iBrain  as well as transportation during the 2024-25 school year and was making progress as a result (Parent Ex. L at ¶¶ 10-21); however, but when he appeared and was cross-examined on November 25, 2024, and testified that the student "had been hospitalized since December" due to a "very serious respiratory infection or respiratory illness" (Nov. 25, 2024 Tr. p. 113).  The deputy director further testified that beginning with the December 2023 hospitalization through to the date of his testimony, "the student ha[d] not been medically cleared to return" to iBrain (id.).

State regulations mandate that a student may receive instruction at home or outside of school for a variety of reasons (see 8 NYCRR 100.10, 175.21[a], 200.6[i]).  For example, students may be home schooled by their parents (8 NYCRR 100.10); students with disabilities may receive home or hospital instruction as a placement on the continuum of services (8 NYCRR 200.6[i]; see 8 NYCRR 200.1[w]); or students may receive homebound instruction if they are "unable to attend school because of physical, mental, or emotional illness or injury" (8 NYCRR 175.21[a]; see Educ. Law 3602[1][d]).[10]^, [11]  Although their testimony is not consistent with regard to the period of hospitalization, both the testimony of the iBrain deputy director and the testimony of the parent indicated that the student had either been hospitalized or homebound beginning in December 2023 and continuing through most if not all of the 2023-24 school year (Nov. 25, 2024 Tr. pp. 113, 161).  Notwithstanding the student's significant absences during the prior school year, and the student's ongoing hospitalization at the time the June 2024 iBrain plan was developed, the iBrain plan did not recommend that the student receive home or hospital instruction during the time period he was unable to attend or receive services.  Review of the iBrain plan indicates that iBrain had no plan for the student until he was able to return to iBrain, which was anticipated to be January 17, 2025.

The parent testified that the student had been hospitalized in April or May 2024 and was not discharged from the hospital until September or October 2024 (Nov. 25, 2024 Tr. p. 137).  Further evidence shows that the district contacted the student's parent on September 19, 2024, who informed the district that the student was in the hospital at that time (see Dist. Ex. 1 at p. 1).  The parent also testified that the student had not received any academic instruction since his hospital discharge in either September or October 2024 (Nov. 25, 2024 Tr. p. 142).  The parent testified that iBrain had offered "online schooling" but that she had declined because the student's "medications for the seizures … ma[d]e[] him sleep a lot" and that the student could not physically tolerate sitting up for long periods due to weight loss (id.).  The parent also testified that the student had not attended iBrain in person since his hospital discharge because the student was not "really fully well" and that she "was keeping [him] away from being exposed. He would go to his appointments and that's it. [She] was keeping [him] away from the public because [he] had lost a lot of weight and he wasn't really well enough to go over to the school" (Nov. 25, 2024 Tr. p. 160).  The parent further testified that the student was "supposed to be going back out to school next month [December 2024] because he sleeps a lot. He [wa]s always sleeping. The medications have him sleeping" (Nov. 25, 2024 Tr. p. 142).

With regard to the provision of related services in the home, the hearing record does not reflect that iBrain offered home-based services during the 12-month, 2024-25 school year.  The parent testified that a "traveling nurse" sometimes came to the home to assist her and "sometimes she [wa]s at the school" (Nov. 25, 2024 Tr. p. 139).  The iBrain deputy director testified and conceeded that the nursing services recommended by iBrain were provided by "a third-party organization … not associated with iBrain" and that he had no knowledge of whether or not nursing services had been provided to the student (Nov. 25, 2024 Tr. p. 114), there is no evidence of what B&H did, if anything, for the student. The iBrain deputy director further testified and conceded that no transportation services had been provided to the student for the 12-month, 2024-25 school year (id.).  As to any other home-based services or in-person instruction, the deputy director testified that the student had not been medically cleared since his December 2023 hospitalization (Nov. 25, 2024 Tr. p. 113).

Turning next to the issue of progress, I note that it is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364).  However, while not dispositive, a finding of progress is, nevertheless, a relevant factor to be considered in determining whether a unilateral placement is appropriate (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

In her discussion of progress, the IHO stated that the iBrain deputy director "testified that the [s]tudent ha[d] made academic and social/emotional progress in his time at [iBrain], as described in detail in the [s]tudent's quarterly progress reports" and that the parent "testified that the [s]tudent ha[d] made progress at [iBrain]" (IHO Decision at p. 21).  The IHO found that "[t]here [wa]s nothing in the record that would undermine or controvert the testimony given by either witness" and she "therefore credit[ed] both of their testimony in full" (id.).

Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).

Here, review of the hearing record in its entirety compels a contrary conclusion.  The IHO erred in relying on the student's progress from prior school years in finding that iBrain was an appropriate unilateral placement for the 12-month, 2024-25 school year, when the evidence clearly demonstrated that the student had prolonged absences during the 2023-24 school year and that iBrain had not provided any services or instruction to the student for any portion of the 2024-25 school year leading up to and including during the impartial hearing.[12] 

The June 2024 iBrain plan indicated that the student had prolonged absences yet lacked dates of the student's medical absences/leaves (Parent Ex. D at pp. 14, 21, 47; see generally Parent Ex. D).  The report mentioned that the student would be out for an upcoming surgery and, as noted above, the student was hospitalized when this report was completed (see Nov. 25, 2024 Tr. p. 161; Parent Ex. D).  As indicated above, while created in June 2024, iBrain's educational plan for the student was not set to be implemented until January 17, 2025 (see Parent Ex. D at pp. 83-85).  The iBrain plan contained various graphs of academic and related service sessions with provider data points graphing progress related to goals over multiple months (id. at pp. 11-12, 14, 15, 21, 25-26, 41, 45).  Data points were provided for the months of October 2023 through December 2023; however, it appears the student did not receive services for an extended period of time between December 2023 and March 2024 as evidenced by a lack of data points, and it appears the student did not receive services after April 2024 as recorded in the June 2024 iBrain plan as academic and related service providers graphs consistently did not include data points after mid-April (id. at pp. 11-12, 14, 15, 21, 25-26, 41, 45).[13]

The October 2024 progress report provided limited to no information on progress toward goals and indicated that due to medical reasons, the student had limited data for goals, or that due to extended hospitalization, the goals could not be addressed during the quarter (see Parent Ex. I).  For example, in academics, all of the goals that were introduced provided a variation of the statement, "[s]tudent ha[d] maintained the previous present level of functioning related to this goal" and "due to medical reasons, the data [wa]s inconsistent" (id. at pp. 1-2).  However, in review of the previous fourth quarter report from iBrain dated July 5, 2024 the more current October 2024 2024-25 school year progress report copied the progress related to the July 2024, 2023-24 school year (compare Parent Ex. I, with Parent Ex. H).[14]  For example, a math goal identified on the July 2024 progress report indicated that "due to [the student] being absent for medical reasons, this goal was targeted only [four] times," and this statement was copied into the updated October 2024 progress report (compare Parent Ex. H at p. 2, with Parent Ex. I at p. 2). 

Similar to the June 2024 iBrain plan, the October 2024 progress report did not clarify the length of the student's medical/hospitalization and whether the student had received any services during the first quarter (Parent Ex. I at pp. 1-21; see generally Parent Ex. D). Rather, it provided vague statements that the student "maintained previous present level of function related to goal," that for medical reasons "data [wa]s inconsistent," that "[d]ue to [the student's extended hospitalization there were limited opportunities to address this skill this quarter," or that no progress was made due to these limited opportunities (Parent Ex. I at pp. 1-21).  Related services indicated that re-assessments would be conducted "upon [the student's] return to school" and the vision provider indicated that due to hospitalization, the student was "not able to receive direct instruction and opportunities to address this objective" (id. at pp. 1-22).

With regard to progress, the hearing record lacks evidence that anyone provided any services the student during the 12-month, 2024-25 school year (Nov. 25, 2024 Tr. pp. 113-14, 160-61; see generally Parent Ex. I).  Upon closer examination, the progress report was not signed by any of the student's providers, including in areas of academics, assistive technology, music therapy, OT, PT, speech-language therapy, or vision (see Parent Ex. I).  The providers' names are not listed on the student's progress report (see id.).  It is unclear if the October 25, 2024 iBrain progress report was completed by the student's providers or by iBrain administration in preparation for the impartial hearing, as a more accurate progress report in all areas would have indicated that the providers did not service the student for the entirety of the first quarter through October 25, 2024, the report date.  I find that the documents purporting to show progress during the 2024-25 school year were not reliable evidence.

The deputy director made a general statement in his written testimony regarding the student making progress during his time at iBrain and "continued to do so during the 2024-25 school year" and stated that the student made progress in his related services goals, as more thoroughly outlined in the progress reports (Parent Ex. L ¶ 21).  In relation to academics, the deputy director later stated the student was not medically cleared to receive services; however, in relation to nursing services, he could not provide information since those services were through a nursing agency and not directly with iBrain (Nov. 25, 2024 Tr. pp. 113-14).  In relation to transportation services, the deputy director testified that the student had not received services so far during the year, but these services would be "ready to go once the student return[ed]" as the service was designated for the student (Nov. 25, 2024 Tr. p. 114).

It is well settled that the legal standards by which unilateral placements are judged expressly allow for flexibility and consideration of the totality of the circumstances rather than rigidly proscribed criteria (see Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65 ["No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits . . . [and] . . . courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs"]).  Thus, a failure to furnish every special service necessary for the student, including related services, will not render a unilateral program inappropriate if the program as a whole is reasonably calculated to enable the student to receive educational benefits (T.K. v. New York City Dep't of Educ., 810 F.3d 869, 878 [2d Cir. 2016]; C.L. 744 F.3d at 838-39).

However, the parent must still come forward with evidence that describes the unilateral placement, the services she obtained and the delivery thereof.  The June 2024 iBrain plan in this case called for school based services for a student that the school knew was and continued to be hospitalized (Parent Exhibit D).  That plan was inappropriate for the student.  Additionally, the hearing record lacks evidence demonstrating that iBrain provided the student with any specialized instruction to address the student's unique needs for the 12-month, 2024-25 school year. 

This case has similarities to another case involving the same private school.  Evidence that iBrain was not delivering services to a student consistent with the recommendations in an iBrain plan has been found to support a finding that iBrain was not an appropriate unilateral placement (Khanimova v. Banks, 2025 WL 722876, at *5-*8 [S.D.N.Y. Mar. 6, 2025]).  The District Court found that iBrain's failure to adhere to its own plan and to deliver the mandated related services as recommended in the iBrain plan supported a finding that the parent had failed to establish that iBrain provided the student with specially designed instruction to permit the student to benefit from instruction (id. at *5).  Additionally, the District Court found there was no evidence that the student made progress under the program that was actually delivered to the student (id. at *8).  Thus, under the totality of circumstances in that case, the parent's request for funding of the costs of the student's tuition at iBrain was denied (id.).

Based on the foregoing, the IHO's findings in this case as to the appropriateness of the iBrain educational plan, the student's progress, and the provision of services by iBrain and Sisters Travel were entirely unsupported by the evidence hearing record.  Accordingly, the district is correct that the IHO's determination that the parent met her burden of proof to establish that iBrain  and the private transportation from Sisters constituted an appropriate unilateral placement for the 12-month, 2024-25 school year must be reversed.

C. Equitable Considerations

Having found that the parent failed to meet her burden of demonstrating the appropriateness of her unilateral placement of the student at iBrain, it is not necessary to reach the issue of equitable considerations.  However, the specific circumstances of this matter warrant discussion and alternate findings.

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

The IHO found that the parent acted unreasonably by failing to mitigate her financial obligations under the agreements with the nursing agency, B&H, and transportation provider Sisters given the parent's knowledge of the student's hospitalizations (IHO Decision at pp. 25-26, 28-29).

According to the hearing record, the parent electronically signed agreements with Sisters for special transportation and with B&H for 1:1 nursing services on June 20, 2024, each for a term beginning on July 2, 2024 through June 27, 2025 (Parent Exs. A-F at pp. 1, 6-7; A-G at pp. 1, 7-8).  On June 24, 2024, the parent electronically signed an annual enrollment contract with iBrain for the student's attendance from July 2, 2024, through June 27, 2025 (Parent Ex. A-E at pp. 1, 6-7).  According to the parent's testimony, the student was hospitalized from April or May 2024 through September or October 2024 (Nov. 25, 2024 Tr. p. 137).

The iBrain enrollment contract provides that the parent "may terminate th[e] Enrollment Contract by submitting a written Termination Notice … in writing … and … provide [the] [p]arent(s)/[g]uardian(s)'s reasons for terminating the Enrollment Contract" (Parent Ex. A-E at p. 3).  The enrollment contract also states that "[i]f [a] written Termination Notice is received after the [s]tudent's first day of attendance, [p]arent(s) /[g]uardian(s) will be responsible for paying all tuition fees for the calendar month in which Termination Notice is received on a pro rata basis" and the "[p]arent(s)/[g]uardian(s) also will be responsible for paying all outstanding tuition and fees then due and owing, if any, for all months prior to the month in which Termination Notice is received" (id. at p. 4).

The transportation contract with Sisters provides that the client "may terminate the [agreement] if [the student] relocates outside of local school district or due to health reasons [the student] is no longer requiring special school transportation services. Termination shall be effected by serving a written notice of termination on [Sisters] setting forth the conditions for termination" (Parent Ex. A-F at p. 3).  The contract for 1:1 nursing services with B&H also provides that the client "may terminate the [agreement] if [the student] relocates outside of local school district or due to health reasons [the student] is no longer requiring [services]" (Parent Ex. A-G at p. 3).

Given the student's ongoing hospitalization at the time the parent signed the enrollment and service contracts, the IHO correctly found that incurring a financial obligation of over $700,000, when the parent did not know when the student would be able to attend iBrain, was unreasonable.  The IHO also correctly determined that it was not reasonable for the parent to make no attempt to mitigate her financial obligations under the contracts by exercising the termination provisions when it became apparent that the student would remain hospitalized indefinitely after the first day of the 12-month, 2024-25 school year.

In addition, the parent's 10-day notice also warrants discussion.  The Second Circuit has emphasized that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" (Bd. of Educ. of Yorktown Cent. School Dist. v. C.S., 990 F.3d 152, 171 [2d Cir. 2021]; see 20 U.S.C. § 1412[a][10][C][iii][I]; 34 CFR 300.148[d][1]; Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004] [noting that the statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools"]).  During the 10-day notice period, a district "may seek to correct the IEP" after it has been given notice of the parents' objections and "may defend against a claim for tuition reimbursement by pointing out that parents did not cooperate in the revision of the IEP, or that the corrected IEP, if accepted by the parents, would have provided the child with a FAPE" (Bd. of Educ. of Yorktown Cent. School Dist., 990 F.3d at 171).

The parent notified the district by letter dated June 10, 2024, that she was rejecting the recommendations of the "most recent" CSE, based on the parent's review of the proposed recommended program and placement for the student, and the proposed IEP to be implemented during the 12-month, 2024-25 school year (Parent Ex. A-A at pp. 1, 2).  The parent challenged the special class student-to-teacher ratio and raised numerous assigned school site claims (id. at p. 2).  Notably, the parent did not disclose the student's hospitalization or need for home or hospital instruction in her 10-day notice (id.).  What is worse is that the parent's law firm drafted the ten-day notice that misrepresented these facts through omission, a law firm which the courts have noted numerous times was founded by iBrain's founder (see, e.g., Fiallos v. Aviles-Ramos, 2025 WL 2961624, at *5 [S.D.N.Y. Oct. 20, 2025]).

As noted above, the purpose of the 10-day written notice is to give the district an opportunity, before the child is removed, to evaluate the student, convene a CSE and to develop an IEP.  Here, the parent's failure to disclose the student's ongoing hospitalization was not reasonable, and impeded the district's ability to develop an appropriate IEP for the 12-month, 2024-25 school year.  It is unclear why the lack of the school location letter or a 1:1 nurse as found by the IHO was so critical, given that the student was not able to attend the public school and the hospital would be responsible for nursing at the time the IEP was developed and student was unilaterally placed, facts which appear that were apparently largely if not totally concealed from the district.[15]

Matters did not improve as the due process proceeding began to get underway.  The conduct of the parent's attorneys and that of iBrain's administration warrant review.  The parent's documentary evidence and the statements by the attorney during the prehearing conference and impartial hearing failed to mention that the student was hospitalized or homebound at the time of the IEP and well into 2024-25 school year and had not attended iBrain or received any remote or home-based instruction or related services at any point during the 12-month, 2024-25 school year.  The IHO noted that the parent's counsel "did not mention this fact during the pre-hearing conference held on October 9, 2024, or the pendency hearing held on October 18, 2024" (IHO Decision at p. 24). Both the iBrain deputy director and the parent provided misleading affidavit testimony regarding the student's attendance at iBrain for the 2024-25 school year (see Parent Exs. K ¶¶ 5, 11-13; L ¶¶ 10, 13, 20, 21).  The deputy director's affidavit stated that the student "attend[ed] a 6:1+1 class" and received related services on a weekly basis (Parent Ex. L ¶ 13).  Further, with respect to the student's progress, the deputy director reported that the student "ha[d] made academic and social/emotional progress during his time at iBrain," "continued to do so during the 2024-25 school year" and "[h]e [wa]s also making progress in his related service goals" (id. ¶ 21).  The parent's affidavit expressly stated that the student "currently attends a 6:1+1 class at iBrain," detailed his use of AAC devices to support communication, stated that he received related services, and had a 1:1 paraprofessional and 1:1 nurse all day during school, including a 1:1 nurse on the bus (Parent Ex. K ¶¶ 11-13).  As the IHO noted, the fact that the student had not yet attended iBrain during the 12-month, 2024-25 school year "only surfaced during cross-examination of the [parent's] witnesses during the due process hearing" (IHO Decision at p. 24; Nov. 25, 2024 Tr. pp. 113-114, 137-142).  The October 25, 2024 progress report from iBrain was similarly misleading. As mentioned above, the progress report claims the student was present for some sessions during the 2024-25 school, however, such information was copied from the student's progress report from the previous school year (compare Parent Ex. I, with Parent Ex. H).

Based on the foregoing, the IHO did not err in reducing the amount of the parent's award of funding based on unreasonableness.  However, the IHO should have denied all funding based on equitable considerations.  While any single factor, on its own, may not have warranted the significant result of denying all funding for the student's attendance at iBrain along with the contracted for costs of the student's transportation and nursing services, I find that, when all of the factors discussed above are viewed in conjunction with one another, equitable considerations weigh against awarding any funding.

D. Pendency

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 T.M., 752 F.3d at 170-71; Mackey v. Bd. of Educ. of the 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]).  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 (T.M., 752 F.3d at 170-71; Concerned Parents and 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. 46709 [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 (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. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 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 [OSEP 2007]).

Here, neither party disputes that pendency for this student lies in an unappealed February 8, 2024 SRO decision (Application of a Student with a Disability, Appeal No. 23-302).  The basis for that stay-put placement is an agreement between the parent and the State that is implied in law once the parent has obtained a favorable ruling  (34 CFR 518.[d]).  As such, the IHO directed the district to fund the student's pendency, consistent with the SRO decision, which included, full tuition at iBrain for the 12-month school year; related services consisting of OT, PT, speech-language therapy, vision education services, music therapy, and parent counseling and training; the costs of the 1:1 "private duty" nursing services; the costs of the 1:1 paraprofessional services; and the costs of transportation consistent with the rate set forth in the October 2022 IHO decision (i.e., $233.00 per hour 1:1 nursing services, and transportation services including a 1:1 paraprofessional at a rate of $233/ hour. (id. at p. 5; see Application of a Student with a Disability, Appeal No. 23-302 at p. 5 & n.6).

However, the district contends in its cross-appeal that the IHO should have considered that the district was ready and able to transport the student for the 2024-25 school year and should have allowed the district to transport the student under pendency.  The district notified the parent in a letter dated July 11, 2024, of its intent to provide no cost transportation for the student to iBrain, and also sent a letter to the parent's attorney dated August 29, 2024, advising that the district was prepared to implement the student's pendency transportation (Dist. Pendency Exs. 1; 2).  The parent argues that the district's cross-appeal of the IHO's interim decision on pendency is untimely.

After reaching the merits of the parent's claims in her decision dated March 4, 2025, the IHO determined that the district was not obligated to fund services that the student did not receive during the 12-month, 2024-25 school year (IHO Decision at pp. 30-31).

Here, the district has timely appealed the IHO's interim decision on pendency.  Initially, a district's appeal of an IHO's interim decision as part of the district's appeal from an IHO's final determination is permissible. While parties have the option of interposing an interlocutory appeal of an interim decision on pendency, State regulation also permits an appeal of any interim decisions in an appeal from the final determination of an IHO (8 NYCRR 279.10[d]).  Accordingly, the parent's contention to the contrary is without merit.While the district alleges that they should be given an opportunity to transport the student, the district does not dispute that it sent the two letters regarding the student's transportation, after the start of the 12-month, 2024-25 school year (see Dist. Pendency Exs. 1; 2).  In any event, while the district is obligated to directly fund the transportation services the student actually received or is receiving, there is no evidence in the record that the student received any transportation to iBrain under the agreement for the entirety of the 2024-25 school year. Given that the parent failed to demonstrate that iBrain was an appropriate unilateral placement, and that the district was not responsible for funding any services the student did not receive under pendency in the 2024-25 school year, there is no need to address the district's contention that the IHO erred in not allowing the district to provide transportation to the student during the pendency of the proceedings.[16]

E. Independent Neuropsychological Evaluation

The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]).  Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).[17]

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv).  If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]).  Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]).

In her decision, the IHO ordered the district to fund an independent neuropsychological evaluation (IHO Decision at pp. 28, 31).  The district cross-appeals, arguing that the parent did not disagree with a specific district evaluation.

Review of the hearing record demonstrates that the parent requested an independent neuropsychological evaluation in her 10-day notice first, and then in her due process complaint notice (see Parent Ex. A at p. 8; Parent Ex. A-A at p. 1).  Nevertheless, it appears that the student was awarded funding for an independent neuropsychological evaluation in a prior proceeding (see Application of a Student with a Disability, Appeal No. 23-302).[18]  In that appeal, neither party appealed from the IHO's award of funding for an independent neuropsychological evaluation (see id.).  The hearing record in this matter does not indicate whether or not the parent has availed herself of her awarded relief in the prior proceeding.

As indicated above and pursuant to the regulations, the parent is only entitled to one IEE at public expense each time the district conducts an evaluation with which the parent disagrees (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g]).  Accordingly, as the parent has already received an award of an IEE for the last district evaluation of the student and it is unclear whether or not the parent has obtained the IEE, it would be inappropriate to award additional funding for the parent's request for a second independent neuropsychological evaluation in this matter.

VII. Conclusion

In summary, the district failed to offer the student a FAPE for the 12-month, 2024-25 school year, and the parent failed to meet her burden of demonstrating that iBrain was an appropriate unilateral placement for the 12-month, 2024-25 school year.  In addition, in the event the parent had demonstrated that iBrain was an appropriate unilateral placement, equitable considerations would weigh against awarding the parent any funding for the cost of the student's attendance at iBrain for the 12-month, 2024-25 school year.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated March 4, 2025, is modified by reversing those portions which found the parent met her burden to demonstrate that the special education and related services from  iBrain, Sisters, and B&H constituted an appropriate unilateral placement for the student for the 12-month, 2024-25 school year; and

IT IS FURTHER ORDERED that the IHO's decision, dated March 4, 2025, is modified by reversing those portions which granted partial funding for the cost of the student's transportation and nursing services for the 2024-25 school year and funding for an independent neuropsychological evaluation.