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 son's tuition at the International Academy for the Brain (iBrain) for the 2023-24 and 2024-25 school years.  The district cross-appeals from the IHO's decision to exclude its motion to dismiss and supporting documents and disclosures from the hearing record.  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]).  Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm]. 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804).  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 is nonverbal and nonambulatory, and has received diagnoses of a chromosome deletion syndrome, seizure disorder, congenital heart defects, and chronic respiratory failure; additionally, the student receives all nutrition/hydration through a GJ-tube, and is "tracheostomy dependent" (Parent Ex. B at pp. 1, 7, 16).  The student has been hospitalized many times due to respiratory distress, cardiac dysfunction, and various infections and viruses (id. at pp. 1, 16).  According to the parent, the student received services through the Early Intervention Program in the form of twice weekly speech-language therapy, occupational therapy (OT), and physical therapy (PT) delivered by a hospital (id. at pp. 1, 17).

During the 2023-24 school year, the student was admitted to the hospital in February 2024, and, in March and April 2024, iBrain conducted an evaluation of the student (Parent Ex. B at pp. 1-4).  The student began attending in-person classes at iBrain in April 2024 when he was four years old (id. at pp. 5-6).[1]^, [2]

On June 17, 2024, the parent electronically signed an enrollment contract for the student to attend iBrain during the 2024-25 extended school year from July 2, 2024 to June 27, 2025 (Parent Ex. A-D at p. 1).[3]

In a letter to the district, dated June 18, 2024, the parent, through her attorneys, informed the district of her objection to the district's failure to convene a CSE to develop an IEP for the student for the 2023-24 school year and of her intention to unilaterally place the student at iBrain and seek public funding for the costs thereof (Parent Ex. A-A).

On June 20, 2024, the parent electronically signed a transportation contract with Sisters Travel and Transportation Services (Sisters Travel) for the transportation of the student to and from iBrain during the 2024-25 extended school year (Parent Ex. A-E).  On the same day the parent also electronically signed a nursing service agreement with B&H Health Care Services, Inc. (B&H) to provide 1:1 nursing during both transportation of the student to and from school and during his school day at iBrain (Parent Ex. A-F).

A. Due Process Complaint Notice

In a due process complaint notice dated July 5, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 and 2024-25 extended school years (Parent Ex. A).  The parent requested pendency at iBrain as the "operative placement" for the student and direct funding of the student's iBrain tuition, transportation services, and nursing services for the 2024-25 school year (id. at p. 2).

The parent alleged numerous procedural and substantive violations, including the district's failure to: follow proper procedures in developing an IEP; timely or actually conduct an annual CSE review and develop an IEP; timely or actually provide an appropriate school location notice; provide proper meeting notices, prior written notices, IEPs, and evaluations; appropriately identify the student's disability and unique needs within an IEP; conduct the necessary evaluations of the student; explain each service the student would receive and whether the teachers and providers were trained in that service; adequately provide training for assistive technology, two-person transfers, seizures, and other medical needs of the student; identify all of the student's management needs; develop sufficient present levels of performance; recommend appropriate accommodations; and adequately explain how classwork/testing would be modified for the student (Parent Ex. A at p. 4).  Mainly, the parent alleged that the district failed to convene a CSE to develop an IEP suited to the student's special education needs or provide her with a prior written notice or a school location letter for both the 2023-24 and 2024-25 extended school years (id. at pp. 5-6).

Next, the parent alleged that iBrain was an appropriate unilateral placement as the student made "considerable progress in all domains" and was receiving special education and related services designed to meet his unique needs (Parent Ex. A at pp. 5, 7).  The parent also alleged that equitable considerations supported an award of tuition and related services at iBrain together with special transportation and nursing services (id.).  As relief, the parent requested direct funding of the iBrain tuition, transportation services, and nursing services for the 2023-24 and 2024-25 extended school years (id. at p. 7).  Further, the parent requested that the CSE reconvene upon completion of an independent education evaluation (IEE) and for the district to fund an IEE consisting of an independent neuropsychological evaluation of the student (id. at pp. 7-8).

B. Impartial Hearing Officer Decision

After a prehearing conference held on August 13, 2024 and a status conference held on September 13, 2024 (Tr. pp. 1-50), an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on October 10, 2024 and concluded October 31, 2024 after two days of proceedings devoted to the merits (Tr. pp. 50-143; Oct. 31, 2024 Tr. pp. 1-58).[4]  On August 14, 2024, the district filed a motion to dismiss based on the parent's failure to participate in the resolution meeting and child find process, among other grounds (see IHO Ex. B).  On September 6, 2024 the IHO issued an interim order denying the district's motion to dismiss (see Interim IHO Decision on Mot. to Dismiss).  On the same day, the IHO also issued an interim order on pendency in which the IHO determined the student did not have a "pendency placement" because he never had an IEP created by the district (Interim IHO Decision on Pendency).  During the October 10, 2024 impartial hearing, both parties made opening statements and the IHO's entered the parent's exhibits but declined to enter the district's exhibits into the hearing record because the district's attorney submitted disclosures late and the parent's attorney objected to the district's late submission (Tr. pp. 55-68, 80-98, 100-21).  Both parties provided written closing statements (IHO Exs. II-III).

In a decision dated January 22, 2025, the IHO found that the district did not violate its child find obligation under the IDEA and thus was not liable for any failure to evaluate the student or to provide the student a FAPE for either the 2023-24 or 2024-25 school years (IHO Decision at pp. 5-7).  More specifically, the IHO noted that the student attended a private school during the 2023-24 school year, was not school age until May 2024, and had not yet been evaluated for special education services despite the district's multiple efforts to coordinate with the parent to evaluate the student in July 2024 in anticipation of the 2024-25 school year (id. at p. 7).  The IHO determined that, given the proximity in time between the student reaching the minimum age of eligibility for special education services and the district's outreach to the parent to evaluate the student, the hearing record reflected that the district attempted to evaluate the student within a reasonable time, as required by the IDEA (id.).  The IHO also noted that, in cases where the parent does not provide consent to evaluate a student, a school district cannot be held liable for failing to provide the student with services (id. at pp. 6-7).  The IHO determined that, although the parent's failures to respond to the district's efforts to evaluate to the student were understandable given the student's circumstances, the district could not be found to have violated its child find obligations under the IDEA (id. at p. 7).  Accordingly, the IHO denied the parent's requested relief (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in determining the district did not deny the student a FAPE for the 2023-24 and 2024-25 extended school years and failed to make any findings as to whether iBrain was an appropriate unilateral placement or whether the equitable considerations favored the parent's requests for relief.  More specifically, the parent argues the IHO: failed to address all of the district's procedural and substantive violations for the 2023-24 and 2024-25 extended school years; erred in his adverse findings against the parent; erred in finding the student was not entitled to a FAPE; failed to acknowledge the district denied the student a FAPE by failing to evaluate him; failed to consider the underlying reason for the parent's delay in providing consent to the district to evaluate the student; and failed to make any findings as to whether iBrain was an appropriate unilateral placement or whether equitable considerations favored the parent's requests for relief.  As relief, the parent requests full direct payment of the cost of the student's tuition at iBrain including transportation and nursing services for the 2023-24 and 2024-25 school years, or, in the alternative, that the matter be remanded to the IHO for further findings specifically relating to whether iBrain was an appropriate unilateral placement or whether the equitable considerations favored the parent's claims for relief.

In an answer and cross-appeal, the district denies the material allegations contained in the parent's request for review.  The district asserts that the IHO's findings should be upheld, as the parent did not provide consent to evaluate the student and the district did not violate its child find obligations.  The district also asserts that the parent did not meet her burden to show that iBrain was an appropriate unilateral placement and that equitable considerations did not favor the parent's request for relief.  As for the district's cross-appeal, the district asserts the IHO improperly excluded its supporting documents submitted with its motion to dismiss and its disclosure documents during the impartial hearing.

In a reply and answer to the cross-appeal, the parent reiterates her allegations as set forth in the request for review and asserts that the district's documents were properly excluded from the record.

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]).[5]

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. Preliminary Matters

1. Scope of Review

At the outset, the parent argues that the IHO failed to address all of the procedural and substantive violations against the student for the 2023-24 and 2024-25 extended school years and that these violations went unchallenged by the district and thus warrant a reversal of the IHO's FAPE determination.  The parent's argument fails to acknowledge that the IHO did not reach these claims because the district had not found the student eligible for special education as of the dates of the due process complaint notice and the impartial hearing, nor had the district ever developed an IEP for him.  Accordingly, the parent's procedural and substantive violations regarding IEPs that had never been created presuppose that the district was obligated to follow those procedures with respect to the student due to the occurrence of triggering events, and, as addressed further below, the IHO was correct to first address threshold issues by considering whether the district violated its child find obligations to the student.

Additionally, the district does not appeal from the IHO's interim order denying its motion to dismiss and the parent does not appeal the IHO's interim order on pendency, which determined the student did not have a pendency placement as the district had never created an IEP for the student (see Interim IHO Decision on Mot. to Dismiss; Interim IHO Decision on Pendency).  Therefore, these findings 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]).

Moreover, although the parent requested public funding for an independent neuropsychological evaluation in her July 2024 due process complaint notice (Parent Ex. A at pp. 7-8), the IHO did not address this issue in his decision (see generally IHO Decision), and the parent has not pursued district funding for an IEE on appeal.  State regulations governing practice before the Office of State Review require that the parties set forth in their pleadings "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" and further specify 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][2], [4] [emphasis added]; see Davis v. Carranza, 2021 WL 964820, at *12 [S.D.N.Y. Mar. 15, 2021] [upholding an SRO's conclusions that several claims had been abandoned by the petitioner]; M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *23 [S.D.N.Y. Sept. 28, 2018] [upholding dismissal of allegations set forth in an appeal to an SRO for "failure to identify the precise rulings presented for review and [failure] to cite to the pertinent portions of the record on appeal, as required in order to raise an issue" for review on appeal]; J.S. v. New York City Dep't of Educ., 2017 WL 744590, at *4 [S.D.N.Y. Feb. 24, 2017] [agreeing with an SRO that the parents' "failure to advance specific arguments in support of their conclusory challenge constituted waiver of those issues"]).  Thus, since the parent did not appeal from the IHO's failure to address the parent's request for an IEE, the claim has been abandoned on appeal and will not be further discussed.

2. IHO's Evidentiary Rulings

The district submits with its answer and cross-appeal documents that were attached as exhibits to the its August 2024 motion to dismiss (three exhibits collectively submitted as proposed SRO exhibit 1) and documents that the district attempted to offer into evidence at the impartial hearing (seven exhibits collectively submitted as proposed SRO exhibit 2).  The district argues the IHO erred by excluding its supporting documents for its motion to dismiss and its proposed exhibits from the hearing record.

In this case, it appears that the documents included with district's proposed SRO exhibit 1 were provided to the IHO on August 16, 2024, prior to the date of the October 10, 2024 impartial hearing, attached to the district's motion to dismiss (see IHO Ex. B at pp. 7-11, 13 [reflecting the district's citation of exhibits "1" through "3" in its motion to dismiss]).[6]  State regulations provide that "all briefs, arguments or written requests for an order filed by the parties for consideration by the impartial hearing officer" are part of the hearing record (8 NYCRR 200.5[j][5][vi][b]).  However, exhibits to a motion would not necessarily become part of the hearing record unless relied upon the IHO in ruling on the motion (see Matter of Ahnna N., 229 A.D.3d 882, 883 [3d Dep't 2024] [noting that documents not offered as evidence during a hearing and not relied upon to render a final judgement are properly omitted from a record on appeal]).  Here, the IHO did not cite the motion exhibits in his decision denying the motion (Interim IHO Decision on Mot. to Dismiss).  During the impartial hearing, the district inquired of the status of the motion exhibits and, although the IHO indicated that he "reviewed the documents that the District submitted," he found that they were not "necessary" to consider for purposes of ruling on the district's motion to dismiss and, therefore, "they weren't entered into the record" (Tr. pp. 69-74).  The district did not separately offer the documents as exhibits during the substantive portion of the impartial hearing; accordingly, the subject documents were offered only in support of the motion and not on the substance of the parent's claims.  The district does not appeal the IHO's denial of its motion to dismiss.  Accordingly, I do not find it necessary to review the IHO's determination to exclude the motion exhibits from the hearing record.[7]

As identified by the district, proposed SRO exhibit 2 consists of documents that the district offered as evidence at the impartial hearing, but which the IHO refused to enter into the hearing record as the district did not properly disclose them pursuant to the five-business-day rule (see Tr. pp. 61-62, 67-68).  The district argues the IHO improperly excluded its documents as untimely disclosed.

Unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]).

Federal and State regulations provide that a party has the right to prohibit the introduction of evidence that has not been disclosed to that party at least five business days in advance of the impartial hearing (34 CFR 300.512[a][3]; 8 NYCRR 200.5[j][3][xii]).  However, courts have not enforced absolute adherence to the five-day rule for disclosure but have upheld the discretion of administrative hearing officers who consider factors such as the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties' respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding (see New Milford Bd. of Educ. v. C.R., 431 Fed. App'x 157, 161 [3d Cir. June 14, 2011]; L.J. v. Audubon Bd. of Educ., 2008 WL 4276908, at *4-*5 [D.N.J. Sept. 10, 2008], aff'd, 373 Fed. App'x 294 [3d Cir. 2010]; Rosenberger v. Banks, 2025 WL 2773299, at *3 [S.D.N.Y. Sept. 29, 2025]; Pachl v. Sch. Bd. of Indep. Sch. Dist. No. 11, 2005 WL 428587, at *18 [D. Minn. Feb. 23, 2005]; Letter to Steinke, 18 IDELR 739 [OSEP 1992]; see also Dell v. Bd. of Educ. Tp. High Sch. Dist., 113, 32 F.3d 1053, 1061 [7th Cir. 1994] [noting the objective of prompt resolution of disputes]).

The district argues on appeal that it never received a conclusive scheduling notice from the IHO for the October 10, 2024 hearing date and that, when the district attempted to obtain clarification from the IHO, he did not respond until two days before the purported scheduled hearing.

Review of the hearing record reflects that the parties proceeded to a prehearing conference on August 13, 2024, at which the IHO stated on the record that he abides by the "five-business-day disclosure deadline" (Tr. p. 18).  The parties then proceeded to a status conference on September 13, 2024, at which the IHO noted, referring to the status of the district's evaluation of the student and the parent's consent therefor, that the matter was "at an odd . . . space . . . between important events that would bear on [his] ability to effectively adjudicate th[e] case" (Tr. p. 38).  Therefore, the IHO indicated he would not decide on how to proceed until he reviewed an updated district events log for the student and received an update as to "where things st[ood] with regards to this student and the parent's capacity" to produce the student for an evaluation taking into account that the student was hospitalized at the time (Tr. pp. 42, 48-49).

After receiving responses from the parties in this regard, the IHO turned to scheduling the impartial hearing (Tr. p. 48; IHO Exs. I at pp. 8-10; IV).  In an email to the parties sent on September 19, 2024, the IHO provided a list of dates he was available to hold the impartial hearing and requested that the parties respond by September 23, 2024 and indicate which dates they were available (id. at p. 8).  The parties did not respond on such date and the IHO extended their time to respond to September 24, 2024 (id. at p. 7).  On September 25, 2024, the parent's attorney responded that he would prefer the impartial hearing be held on October 10 or October 11, 2024; the district's attorney also responded that October 10, 2024 would work for him although he continued to press the district's view that the matter should be dismissed without a hearing (id. at pp. 6-7).  On October 3, 2024, the parent's attorney provided disclosures (id. at p. 4).

On October 7, 2024, the district's attorney sent an email to the IHO and the parent's attorney stating it never received a scheduling notice from the IHO or confirmation from the IHO or parent's counsel that October 10, 2024 was an acceptable date (IHO Ex. I at p. 4).  The district's attorney requested that the hearing date be rescheduled or for the parent's counsel to waive the five day disclosure date (id.).

In an email dated October 9, 2024, the IHO responded that, on September 25, 2024, he scheduled the hearing for October 10, 2024 (IHO Ex. I at p. 3).  The IHO noted that, although the parties subsequently responded with their availability, the hearing date was already set, and the parties had simply "not received the calendar invitation for the virtual hearing room yet" (id. at p. 4).  The IHO stated his view that, given that the schedule was set nearly two week prior, "the parties had ample time to prepare for and provide disclosures" (id.).  The IHO denied the district's request for an adjournment and indicated the district's documents would not be admitted into evidence without the parent's consent (id.).

The district submitted its disclosures on October 9, 2024 (IHO Ex. I at p. 1).  The IHO responded that, because the disclosures were submitted less than five business days prior to the date of the hearing, the documents would not be admitted (id.).  The IHO indicated that, at the impartial hearing, the parties would have opportunity to raise objections to the IHO's ruling in this regard (id.).  During the impartial hearing on October 10, 2024, the district's attorney stated its position that it was not clear that the hearing had been scheduled for that date (Tr. pp. 60-64).  The parent's attorney objected to the district's exhibits (Tr. p. 67).  After considering the parties' positions, the IHO reiterated his ruling that the district's exhibits would not be admitted into evidence (Tr. pp. 67-68).

The foregoing demonstrates that the district had sufficient notice regarding the scheduling of the impartial hearing and the deadline for its disclosures.  Contrary to the district's position that it did not receive confirmation from the parent, in the email exchange summarized above, the parent's attorney stated October 10, 2024 was an acceptable date for the parent (IHO Ex. I at p. 7).  Further, although the hearing record does not include a copy of an email referenced by the IHO as being sent on September 25, 2024 at 9:18 am (see id. at p. 3), during the impartial hearing, the district's attorney "acknowledge[d]" that he received notice from the IHO that he was "scheduling for this date" (Tr. p. 60).  The district's attorney indicated that his confusion arose because he was expecting a formal "scheduling order" (id.).

Under the circumstances, the district's attorney's expectations regarding a formal order scheduling the impartial hearing were not justified in light of the parties' and the IHO's communications summarized above.  Accordingly, with the exception of District Ex. 3 in proposed SRO Ex. 2, the IHO did not abuse his discretion by declining to enter the district's documents into evidence in light of the parent's objection to the documents on the grounds that they were not disclosed within five-business-days of the October 10, 2024 impartial hearing date.

B. Child Find

Turning to the crux of the dispute between the parties, the purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see also Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1],[7]).  The IDEA places an ongoing, affirmative duty on State and local educational agencies to identify, locate, and evaluate students with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019], aff'd, 2021 WL 745890 [2d Cir. Feb. 26, 2021]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]).  The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]).  To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094).  A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]).  To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent in failing to order testing, or have no rational justification for deciding not to evaluate the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225).  States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]).

A district's violation of its child find obligation a procedural violation of the IDEA (see Mr. P, 885 F.3d at 750; D.K., 696 F.3d at 249; D.A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 453 [5th Cir. 2010]; Bd. of Educ. of Fayette Cty., 478 F.3d at 313; see also Handberry, 446 F.3d at 347).  As one district court explained, "the IDEA is not an absolute liability statute and the 'Child Find' provision does not ensure that every child with a disability will be found" (A.P., 572 F. Supp. 2d at 225).

Separate from a district's child find obligations, upon written  referral by, among others, a parent or a designee of the school district,  a district must initiate an individual evaluation of a preschool or school-age student suspected of having a disability (see Educ. Law §§ 4410[4][a]; 4401-a[1], [3]; 8 NYCRR 200.4[a]; [a][1]; [b]; 200.16[b]-[c]; see also 20 U.S.C. § 1414[a][1][B]; 34 CFR 300.301[b]).

Here, the evidence in the hearing record indicates that the district initiated the evaluation process for the student in July 2024 after the parent's June 2024 letter to the district and July 2024 due process complaint notice (IHO Ex. IV at p. 2; see Parent Exs. A; A-A).  However, the parent argues that the district had an obligation to initiate the process sooner.  In so arguing, the parent does not claim that she referred the student to the CPSE directly but instead points to evidence that the student received services through the Early Intervention Program (EIP) and that the student's physician completed medical accommodation forms to request services for the student.

As an initial matter, during the impartial hearing, in the IHO's decision, and on appeal, the parties and the IHO have treated the parent's claims in this matter as related to the district's child find obligations (see, e.g., IHO Decision at pp. 5-7; Tr. pp. 25, 30, 44, 47; IHO Exs. B at p. 1; II at p. 3; III at pp. 4-6; Req. for Rev. ¶¶ 14-20; Answer & Cr.-App. ¶¶ 2, 8; Reply ¶¶ 9, 28).  However, while the parent's due process complaint notice contains allegations regarding district's purported failure to convene a CSE to develop an IEP for the student for both the 2023-24 and 2024-25 school years, it does not specifically allege that the district failed in its child find obligations, failed to have procedures in place to locate children with disabilities residing in the district, or was negligent or had no rational justification for deciding not to evaluate the student (see generally Parent Ex. A).  By extension, the due process complaint notice also includes no allegation that the district should have located the student due to the student's receipt of services through the EIP or the physician's completion of medical accommodation forms as the parent now argues on appeal (see id.).  Instead, the due process complaint notice raises claims that allude to procedural and substantive violations that arise in the context of a CSE process that has already been initiated.  For example, the due process complaint notice alleged that the district failed to provide notices, conduct necessary evaluations, or develop appropriate IEPs for the student, with allegations challenging the appropriateness of present levels of performance, annual goals, and programming and services, as if CSEs had, in fact, been convened and IEPs developed for the student (id. at pp. 4-5).[8]

Nevertheless, even if properly raised, the evidence in the hearing record does not support a finding that the district violated its child find obligation to the student.

With respect to the student's receipt of services through the EIP, the hearing record is not fully developed.  The only evidence in this regard are statements in the April 2024 iBrain educational plan based on parent report that the student had "never been in school," but received early intervention services through a hospital (Parent Ex. B at pp. 1, 17, 19).  The student's receipt of services through the EIP would not automatically impute the district with knowledge of the student.  The EIP is part of the New York State Department of Health through the Bureau of Early Intervention, and is not a program run by the district or the New York State Education Department.[9]  It should be noted that "Early Intervention Officials have explicit responsibility in the [Public Health Law] for notifying school districts, with parental consent, of children's potential eligibility for services under Section 4410 of the Education Law and for arranging transition conferences for these children and their families" ("The Transition of Children from The New York State Department of Health Early Intervention Program to The State Education Department Preschool Special Education Program or Other Early Childhood Services," at p. 10, Dep't of Health & SED Mem. [February 2005], available at https://www.nysed.gov/sites/default/files/programs/ special-education/the-transition-of-children-from-the-new-york-state-department-of-health.pdf; see also "Information for Parents of Preschool Students with Disabilities Ages 3-5" [SED], available at https://www.nysed.gov/special-education/information-parents-preschool-students-disabilities-ages-3-5).  The New York State Department of Health's EIP "strongly recommend[s] that primary referral sources and parents of children age two and a half or older, who may have a developmental delay or disability and are not in the EIP, contact their school district CPSE to begin the CPSE process" ("The Transition of Children from The New York State Department of Health Early Intervention Program to The State Education Department Preschool Special Education Program or Other Early Childhood Services," at p. 8).  Here, there is nothing in the hearing record to show that either "Early Intervention Officials" or the parent referred the student to the CPSE.  For that matter, there is no evidence that the student was located or resided in the district at this time.

The parent next points to medical accommodation forms in the hearing record to argue that the district was on notice that the student resided within the district and required special education.  The medical accommodation forms, dated March 8, 2024, were completed by a physician requesting accommodations for the student (Parent Ex. D).  The documents are accompanied by a facsimile cover sheet reflecting they were sent from the physician's office to a social worker on March 13, 2024 (id. at p. 1).  There is no evidence that the social worker named was a district employee and in its answer and cross-appeal the district alleges that a search of the district's employee directory did not yield any results that matched the social worker's name (Answer & Cr.-App. ¶ 12 n.1).  The parent in her reply does not deny that the social work was not employed by the district but argues that the medical accommodation forms were also addressed to the district's Office of School Health.  However, although some of the forms bear the heading for the Office of School Health, reflecting that the office developed the forms, the facsimile coversheet does not identify any recipient other than the social worker (ParentParet Ex. D at p. 1).[10]

Aside from a direct referral for special education or the district's actual knowledge of the student, which as discussed above are not established in the hearing record, the parent does not otherwise allege that the district had insufficient child find processes in place or that it failed to sufficiently engage in such processes in this instance.  For example, in terms of identifying students suspected of having a disability, the district might rely on referrals from educators or monitoring student progress under the district's response to intervention program (see 8 NYCRR 200.4[a]; see also 8 NYCRR 100.2[ii]).  However, the student was not enrolled in or attending a district public school.  If parents enroll their child in a private school, the district in which the school is located has a child find obligation (see 34 CFR 300.131; 8 NYCRR 200.2[a][7]).[11]  In carrying out its child find obligations, a school district is required to "undertake activities similar to the activities undertaken for the agency's public school children" and in a "comparable" time period (34 CFR 300.131[c]; 8 NYCRR 200.2[a][7]; see Child Find for Parentally-Placed Private School Children With Disabilities, 71 Fed. Reg. 46,593 [Aug. 14, 2006]).  Such activities could include "widely distributing informational brochures, providing regular public service announcements, staffing exhibits at health fairs and other community activities, and creating direct liaisons with private schools" (Child Find for Parentally-Placed Private School Children With Disabilities, 71 Fed. Reg. 46,593 [Aug. 14, 2006]).  In addition, "[t]he school district shall consult with representatives of private schools and representatives of parents of parentally placed private school students with disabilities on the child find process" (8 NYCRR 200.2[a][7]).  Here, the student did not begin attending iBrain until April 2024 and there is no indication that any child find activities would reach the parent immediately upon the student's enrollment, particularly given that it was late in the school year.  Just beyond that timeframe, the parent ultimately contacted the district in June 2024 and filed her due process complaint in July 2024 and the district initiated the process to evaluate the student.  Accordingly, the evidence in the hearing record does not support a finding that the district violated its child find obligation to the student.

C. Timeline for the Initial Evaluation and Provision of Special Education Services

With respect to the timeline after the parent's June 2024 letter to the district, the student had reached school-age eligibility and, therefore, the requirement for proceeding under the CSE applied.[12]  That is, once a referral is received by the CSE chairperson, the chairperson must immediately provide the parents with prior written notice, including a description of the proposed evaluation or reevaluation and the uses to be made of the information (8 NYCRR 200.4[a][6]; 200.5[a][5]).  After parental consent has been obtained by a district, the "initial individual evaluation shall be completed within 60 days of receipt of consent" (8 NYCRR 200.4[b]; see also 8 NYCRR 200.4[b][7]).  "Within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability . . . the board of education shall arrange for appropriate special programs and services" (8 NYCRR 200.4[e][1]).[13]

Here, even if the June 18, 2024 letter to the district triggered the district's obligation to evaluate the student under child find and parental consent was promptly obtained (see Parent Ex. A-A), the district's time to evaluate the student and to arrange for appropriate special programs and services would not have expired by the time of the July 2024 due process complaint notice (see Parent Ex. A).  Moreover, at the time of the impartial hearing, there remained a dispute with regard to consent from the parent for the evaluations to take place (see Tr. pp. 26-34, 86-88, 93).  As noted, a school district's time to evaluate a student and arrange for special programming does not begin to run until parental consent is obtained (8 NYCRR 200.4[a][6]; [e][1]; 200.5[a][5]).

The parent argues that her lack of consent was an equitable issue, however, while it is true that the parent's conduct is indeed an equitable consideration, that does not mean it is exclusively an equitable consideration.  Such lack of consent can also delay or negate a district's obligations under IDEA until consent is provided because when a parent does not provide consent or fails to respond to a request to provide consent for an initial evaluation, the district will not be considered to be in violation of its obligation to locate, identify, and evaluate the student if it chooses not to pursue consent override procedures (34 CFR 300.300[a][3]; 8 NYCRR 200.5[b][3]).[14]  In her request for review, the parent acknowledges that she delayed the district evaluations of the student but argues she has a good reason for such delay (Req. for Rev. ¶ 21).  According to the parent, she was hesitant to provide consent in July 2024 due to the student's medical condition (id.).  According to the SESIS log, the district reached out to the parent on July 29, 2024 indicating that a social history and psychoeducational evaluation for the student was scheduled for August 7, 2024 to take place in person at the CSE office (IHO Ex. IV at p. 2).[15]  The parent responded to the district the same day stating she did not consent to the evaluations being scheduled and also indicated that the student was in the hospital (id. at p. 1).  The parent further requested to be contacted before the district scheduled another appointment "without [her] permission" (id.).  Despite the parent's reluctance to schedule an evaluation while the student was in the hospital, the hearing record reflects that providers from iBrain performed evaluations of the student while he was in the hospital on March 4, 2024 (Parent Ex. B at pp. 1, 16, 25, 27).  Moreover, the student's hospitalization does not explain why the parent would not participate in a social history interview or at least sign consent forms in the interim.

In any event, even assuming for the sake of argument that the parent had good reasons to postpone the district's evaluation process while the student was hospitalized, the district was under no further obligation to evaluate the student and create an IEP until it obtained the parent's consent.  Accordingly, there is not enough evidence to overturn the IHO's determination that the district did not violate its obligations to the student under the IDEA for the 2024-25 school year and was not liable for any failure to evaluate the student or to provide the student with a FAPE (see IHO Decision at p. 7).

VII. Conclusion

Having found no basis to disturb the IHO's determination that the district did not violate its child find obligations, the necessary inquiry is at an end.

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

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.