I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her daughter's tuition at the International Academy for the Brain (iBrain) for the 2025-26 extended school year.  The 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 has received diagnoses of a specific gene mutation, global developmental delay, seizure disorder, cortical visual impairment (CVI), and hypotonia, and uses a gastrotomy tube (g-tube) for nutrition (Dist. Ex. 2 at pp. 4, 8, 10).  She is described as nonverbal, non-ambulatory, and requires maximum assistance with all activities of daily living (ADLs) (id. at pp. 4, 7).  She received Early Intervention services prior to preschool (Dist. Ex. 2 at p. 10).

On September 6, 2023, a Committee on Preschool Special Education (CPSE) convened, determined that the student was eligible for special education as a preschool student with a disability, and developed an IEP with an implementation date of January 2, 2024 (Dist. Ex. 1).  The CPSE recommended a 6:1+2 special class placement and that the student receive three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual occupational therapy (OT), and five 30-minute sessions per week of individual physical therapy (PT) (id. at p. 12).  The CPSE also noted that the student required special transportation in a "mini bus" (id. at p. 15).

The student attended iBrain during the 2024-25 school year (Parent Exs. F-H).  On May 28, 2025, a CSE convened for the student's "Turning Five" meeting, found the student eligible for special education and related services as a student with multiple disabilities, and developed an IEP with an implementation date of September 1, 2025 (Parent Ex. C at p. 1).[1]  The May 2025 CSE recommended 12-month programming consisting of a 12:1+4 special class placement, three 30-minute sessions per week of OT, five 30-minute sessions per week of PT, three 30-minute sessions per week of speech-language therapy, and one 60-minute session per month of parent counseling and training (id. at pp. 22-2).  The CSE recommended full time, individual, health paraprofessional services to assist the student with ambulating, feeding, and monitoring seizures (id.).  Additionally, the IEP indicated that the paraprofessional would receive training "on seizure recognition and response by school nurse" (id.).  The district summarized its recommendation in a prior written notice dated May 31, 2025 (Dist. Ex. 6).  The district advised the parent of the assigned public school in a subsequent prior written notice dated June 16, 2025 (Dist. Ex. 7).

The evidence in the hearing record indicates that, on June 16, 2025, the parent electronically signed an "Annual Enrollment Contract" with iBrain for the student's attendance during the 2025-26 school year (July 9, 2025 through June 26, 2026) (Parent Ex. A at pp. 22, 27-28).  The parent also electronically signed a "Nursing Service Agreement" with "Park Avenue Home Care, LLC" (Park Avenue) to deliver nursing services to the student during the 2025-26 school year (July 9, 2025 through June 26, 2026) (Parent Ex. A at pp. 37-44). The hearing record further reflects that, on June 10, 2025, the parent electronically signed a "School Transportation Annual Service Agreement" with "Sisters Travel and Transportation Services, LLC," (Sisters Travel) to provide round-trip transportation services for the student during the 2025-26 school year (July 9, 2025 through June 26, 2026) (Parent Ex. A at pp. 29-36).

A. Due Process Complaint Notice

In a due process complaint notice dated July 11, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 extended school year based upon various procedural and substantive violations of the IDEA (see generally Parent Ex. A).  Generally, the parent alleged that the district failed to provide a procedural safeguards notice or a prior written notice and school location letter; failed to evaluate the student; denied the parent the opportunity to participate in the CSE process and predetermined the outcome of the May 2025 CSE meeting; and that the May 2025 CSE failed to identify the student's disability and needs, lacked appropriate evaluations, did not recommend necessary training for assistive technology and medical needs, failed to develop measurable annual goals or recommend appropriate accommodations, inappropriately recommended a 12:1+4 special class, failed to recommend a 1:1 nurse or music therapy, and failed to recommend necessary special transportation accommodations (id. at pp. 4-8).

As relief, the parent sought an interim order on pendency and an order directing the district to directly fund iBrain for the student's tuition in addition to the costs of her related services, 1:1 nursing services; to directly or prospectively fund the costs of the student's special education transportation services "pursuant to the Special Transportation Services Agreement"; to fund the costs of independent educational evaluations (IEE) consisting of a psychological, neuropsychological evaluation and an educational needs assessment by a provider selected by the parent; to compel the district to reevaluate the student and provide assistive technology services and devices to assist the student with communication, directing the district to fund "additional technology and supportive devices that are detailed in the iBrain IEP"; and that all orders for direct payment "should include a deadline to comply with the order within 30 days" (id. at pp. 8-9).

B. Impartial Hearing Officer Decision

After a preliminary hearing on August 19, 2025 (Aug. 19, 2025 Tr. pp. 1-10), an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 9, 2025 (Sept. 9, 2025 Tr. pp. 1-123) and concluded on September 18, 2025 (Sept. 18, 2025 Tr. pp. 11-141) after two days of hearings.[2]  In a decision dated September 24, 2025, the IHO found that the district offered the student a FAPE for the 2025-26 school year and denied the parent's request for direct funding in its entirety (IHO Decision p. 11).

At the outset, the IHO noted that she found the district had met its burden of proof at the hearing to demonstrate it offered the student a FAPE (IHO Decision p. 3).  In her summary, the IHO identified several instances in the record where the district's evidence demonstrated attempts by the district to get medical documentation from the parent prior to the CSE meeting (id. at pp. 4-5).  The IHO noted that the CSE received a nursing referral form requesting 1:1 nursing on May 29, 2025 (id. at p. 4).  In addressing the parent's claims of procedural violations contained in the due process complaint notice, the IHO indicated that most went unaddressed by the parent at the hearing (id. at p. 5).  Nevertheless, the IHO held that the district provided the parent with "all required notices[,] documents[,] and information by mail or email according to [the district's] SESIS log" (id.).[3]  Moreover, the IHO indicated that the hearing record demonstrated that the CSE team was properly composed, that the district had "attempted all required evaluations of the [s]tudent" and that the district was unable to complete a neuropsychological evaluation without the requested medical documents that the parent did not complete (id. at pp. 5-6).  The IHO concluded that despite the numerous procedural allegations of the parent, the record did not indicate any procedural violations by the district in the creation of the IEP (id. at p. 6).

The IHO found that the parent's substantive allegations were also without merit, concluding that there were no substantive violations and that "the IEP sufficiently evaluated the student based on the information the [district] had" (IHO Decision p. 6).  The IHO reasoned that the district was not required to perform "every sort of test that could arguably be helpful in the creation of the IEP" and that the parent did not provide evidence for why these additional services were allegedly required beyond what was recommended by the district (id.).  The IHO again identified that the parent "failed to provide medical documents, eye report, and accommodation request forms" to the district that would have enabled the district to offer additional medical services (id.).  On the issue of a 1:1 nurse, the IHO reasoned that the district "did not deny [p]arent's request for one on one nursing" but she noted that the school nurse was available to assist with the student's health needs in addition to the health paraprofessional who would be trained by the district (id.).

Despite determining the district offered the student a FAPE for the 2025-26 school year, the IHO also made alternative findings with regard to the appropriateness of the parent's unilateral placement at iBrain (IHO Decision pp. 7-8).  As a whole, the IHO found that the program at iBrain was inappropriate for the student due to the lack of information in the hearing record to demonstrate the methodologies and strategies used by related services providers, a curriculum or schedule for the student, or any attendance records to indicate the student was receiving the services the school provided (id.).  The IHO did not find the nursing contract sufficient to demonstrate that the student was receiving the nursing services she required, likewise the IHO held the transportation contract was insufficient to prove the student received the transportation services she required (id. at p. 8).  While the IHO credited the testimony of the parent's sole witness, she noted that he was not involved in teaching the student nor did he assist in the development of the student's curriculum (id. at p. 7 n.8).

Additionally, the IHO determined that had the parent been successful equitable considerations warranted a reduction in funding (IHO Decision p. 9).  The IHO reasoned that the parent "did not cooperate with the [district]" by failing to provide the required medical documentation including an eye report and accommodation form despite the district's repeated requests to do so (id.).  The IHO also considered the parent's refusal to cooperate with the hearing process and determined that a 50 percent reduction in any tuition award would be warranted despite her finding that the tuition at iBrain was "reasonable" (id.).  Finally, the IHO determined that the parent was not entitled to reimbursement for independent education evaluations (IEEs) due to the lack of disagreement with any specific district evaluation and a lack of cooperation with regard to the district's request for medical documents and a social history (id. at pp. 9-10).  The IHO made a finding that pendency lies in the "last agreed upon education plan" which she determined was the CPSE IEP dated September 6, 2023 (IHO Decision p. 10).  The IHO also ordered that the district reconvene a CSE to determine the student's eligibility for assistive technology (id.).  The IHO denied the parent's request for direct funding in its entirety.

IV. Appeal for State-Level Review

The parent appeals, arguing that the IHO erred in finding that the district offered the student a FAPE, that iBrain was not an appropriate unilateral placement for the student, and that equitable considerations favored the district.  According to the parent, the district denied the student a FAPE because the CSE failed to consider the reports and documentation submitted by iBrain when creating the student's IEP, failed to recommend music therapy and 1:1 nursing for the student, and declined to determine the student's disability classification as a student with a traumatic brain injury.  Regarding the appropriateness of the unilateral placement, the parent argues that the IHO erroneously disregarded substantial record evidence that demonstrated iBrain's education plan was specifically designed to meet the student's needs, and that the IHO unfairly rejected the related services at iBrain due to lack of information about the providers and their credentials.  In addition, the parent argues the IHO erred by not ordering the district to conduct IEEs and by failing to find iBrain as the proper pendency placement.

In an answer, the district asserts that the IHO was correct in finding that the parent failed to establish her burden that iBrain was appropriate, as she did not include a schedule or attendance records showing how many days the student attended school or how many related service sessions she received.[4]  Additionally, the district argues that the student's "academic instruction" at iBrain focused on skills "distinct from actual academics . . ."  Lastly, the district argues that the parent failed to appeal the IHO's finding that the parent offered insufficient evidence to establish that the transportation and nursing services were appropriate, which resulted in a finding that the unilateral placement "more generally" was not appropriate.

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. May 2025 CSE - Nursing Services

The parent appeals from the IHO's determination that the district offered the student a FAPE for the 2025-26 extended school year.  While the parent asserts that the IHO erred regarding other findings concerning the May 2025 CSE process and the substantive appropriateness of the student's May 2025 IEP, the parent's claim that the CSE failed to recommend nursing services for the student is dispositive in this matter and will be addressed accordingly.  As described below, the evidence in the hearing record does not support the IHO's finding that the student's May 2025 IEP was appropriate absent a recommendation for any nursing services.

Generally, a student who needs school health services[6] or school nurse services[7] to receive a FAPE must be provided such services as indicated in the student's IEP (see School Health Services and School Nurse Services, 71 Fed. Reg. 46,574 [Aug. 14, 2006]; see also 34 CFR 300.34[a], [c][13]; 8 NYCRR 200.1[qq], [ss]; Cedar Rapids Community Sch. Dist. v. Garret, 526 U.S. 66, 79 [1999] [indicating that school districts must fund related services such as continuous one-on-one nursing services during the school day "in order to help guarantee that students . . . are integrated into the public schools"]).  State guidance indicates that, in determining whether a student needs a 1:1 nurse, a CSE must obtain evaluative information in all areas of the student's disability or suspected disability; generally, it is expected that "[t]his information may include information from a physician, such as a written order to the school nurse from a student's health care provider" ("Guidelines for Determining a Student with a Disability's Need for a One-to-One Nurse," at p. 2, Office of Special Educ. Mem. [Jan. 2019], available at https://www.nysed.gov/sites/default/files/programs/special-education/guidelines-for-determining-a-student-with-a-disability-need-for-a-1-1-nurse.pdf).  In providing school nurse services, "the school remains responsible for the health and safety of the student and ensuring the care provided to the student is appropriate and done in accordance with healthcare provider orders" ("Guidelines for Determining a Student with a Disability's Need for a One-to-One Nurse," at p. 5).  However, there is also State guidance indicating that "[i]f the CSE/CPSE determine that a student's health needs in accordance with provider orders for treatment can be appropriately met by the school's building nurse, a shared nurse, [or] a 1:1 aide to monitor and alert the school nurse, then a 1:1 nurse is not necessary" ("Provision of Nursing Services in School Settings - Including One-to-One Nursing Services to Students with Special Needs," at pp. 11-12, Office of Student Support Servs., [Jan. 2019], available at https://www.p12.nysed.gov/sss/documents/ OnetoOneNSGQAFINAL1.7.19.pdf).  To determine whether a student requires the support of a full-day, continuous 1:1 nurse, State guidance indicates the CSE "must weigh the factors of both the student's individual health needs and what specific school health and/or school nurse services are required to meet those needs" and provides the following set of factors to consider when making that determination:

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

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

The student's May 2025 IEP reflected that at the time of the CSE meeting, she was attending iBrain and was "assigned a full-time 1:1 school nurse during the school day . . . to ensure her safety in school . . . given her medical diagnoses and history of seizures" (Parent Ex. C at p. 1).  The IEP indicated that the student "relie[d] on a G-tube for feeding," and medical alerts identified in the IEP were that the student had medical conditions and physical limitations that affected her learning and participation in school activities, and that the student "require[d] medical and/or heath care treatment(s) or procedure(s) during the school day" (id. at pp. 5, 30).  The IEP reflected parent report that the student was administered a number of medications at home, and that Albuterol "[wa]s taken on an as needed basis both at home and at school" (id. at p. 30).

The May 2025 CSE recommended strategies and services to address the student's management needs, including that a "[p]araprofessional should accompany [the student] to lunch and assist with G-tube feeding as well as ambulation," and that the "[p]araprofessional w[ould] receive training from the school nurse on seizure recognition and response procedures" (Parent Ex. C at p. 9).  Additionally, the CSE recommended daily, full-time, individual paraprofessional services for the student for "[h]ealth," and "[a]mbulating, feeding/G-Tube, seizures" (id. at p. 23).  Review of the May 2025 IEP does not indicate that the CSE recommended any nursing services, either on a full-time 1:1 basis as requested by the parent, or for specific times during the school day such as during administration of her g-tube feeding, for the student (see Parent Ex. C).

The school psychologist who served as the district representative at the student's May 2025 CSE meeting testified in an affidavit that the CSE recommended full-time, individual health paraprofessional services for the student to address "ambulation, feeding, and safety due to seizures," and that the IEP also provided "training for the paraprofessional on seizure recognition and response by the school nurse" (Dist. Ex. 14 ¶¶ 2, 6, 11).  However, she also characterized the student's "medical needs" as "severe," noting that staff in the recommended special class were "better trained for [the student's] complex medical needs which include[d] a G-tube for feeding . . . [and] seizure disorder" (id. ¶ 12).  The district representative testified that 1:1 nursing was not recommended because the district members of the CSE believed that "based on what was provided to the team, that the school nurse and health paraprofessional could meet the student's needs during the school day" (id. ¶ 21; see Sept. 18, 2025 Tr. p. 67).  However, given the description of the student's needs in the May 2025 IEP, that included potential medication administration, medical response to seizure activity, and administration of g-tube feeding, the lack of a recommendation for any school nursing services resulted in a denial of a FAPE to the student.

Additionally, aside from suggesting that a paraprofessional would appropriately address the student's medical needs, the evidence shows that the district also required the parent to participate in a process to assess the student's need for 1:1 nursing services that occurred outside of the CSE.  At the hearing, the district representative testified that the CSE did not conduct a "medical evaluation" of the student, nor did it "seek an outside medical evaluation" aside from requesting information from the parent (Sept. 9, 2025 Tr. pp. 32-33, 48-49).  Rather, the May 2025 IEP indicated that a "medical accommodation packet" was sent to the parent but not returned as of the date of the May 2025 CSE meeting (Parent Ex. C at pp. 1, 5).[8]  According to the IEP, the CSE "discussed that a change in program and services w[ould] be considered upon receipt of all medical forms that were provided (i.e., eye report, MAF packet, and transportation accommodation forms)" (id. at pp. 5, 30).  Additionally, the IEP indicated that upon receipt of the medical forms from the parent, "the [School Based Support Team] SBST w[ould] submit a nursing referral as well as a referral to the [district's] Office of School Health to review in order to determine [the student's] eligibility for school nurse services, vision services, and any additional transportation accommodations" (id. at pp. 30-31).  The district representative testified that "no Medical Accommodation Form was submitted to the [district]," which was "required because a 1:1 skilled nurse [wa]s a medication decision made by the Individual Nursing Services Unit" (Dist. Ex. 14 ¶ 21).  She further testified that the "parent was informed of this requirement and that the [CSE] would reconvene once the form was received" (id.).

Based on the foregoing, the CSE's failure to recommend any nursing services did not align with the present levels of performance in the May 2025 IEP indicating the student required medical services beyond those appropriately delivered by a paraprofessional.  Additionally, part of the district's refusal to include the recommendation in the IEP was the parent's failure to submit medical accommodation forms.  In doing so, the district improperly placed the burden to obtain medical forms on the parents (see "Guidelines for Determining a Student with a Disability's Need for a One-to-One Nurse," at p. 2 [referring to the district's obligation to evaluate the student in all areas of disability or suspected disability and noting that this "may include information from a physician, such as a written order to the school nurse from a student's health care provider"] [emphasis added]).  Instead, the district's reference to the requirements of the Office of School Health indicates the district improperly relies on this office that is not part of the CSE to decide whether the student's IEP would include a 1:1 nurse (see also Application of a Student with a Disability, Appeal No. 23-102).  The case bears considerable similarity to litigation that was brought against the district which complained of systemic "policies that never required [the Office of School Health (OSH)] or [Office of Pupil Transportation (OPT)]—agencies critical to providing the services at issue in this action—to appear for IEP meetings. . . .  Accordingly, Plaintiffs were required to contact OSH and OPT separately after the IEP meeting.  This policy created a disjointed bureaucracy in which OSH and OPT acted in isolation without coordinating—much less knowing—the services each was required to provide" (J.L. on behalf of J.P. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 464–65 [S.D.N.Y. 2018]).  As a result of the foregoing, the IHO's determination that the district offered the student a FAPE for the 2025-26 school year must be reversed.

B. Unilateral Placement

The parent appeals from the IHO's determination that iBrain was not an appropriate unilateral placement for the student.  Specifically, the parent argues that the IHO erroneously disregarded substantial record evidence that demonstrated iBrain's education plan was specially designed to meet the student's needs, and that the IHO unfairly found the related services at iBrain were not appropriate for the student due to a lack of information about the providers and their credentials.

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).

1. The Student's Needs

The July 2025 iBrain report and education plan (iBrain plan) referenced the assessments administered to the student, and included comprehensive descriptions of the results and the student's strengths and needs at that time (Parent Ex. B at pp. 1-25).  The iBrain plan indicated that the student demonstrated cognitive skills at approximately the 12-18 month range, and primarily communicated using a vocalization to indicate "yes," or interest, and not vocalizing or squeezing a clinician's hand to indicate "no" or disinterest (id. at pp. 5, 12).  With support, the student followed single-step directions and maintained attention to a preferred task for a few seconds at a time (id. at p. 7).  The most effective support to sustain the student's attention and participation when she was feeling "sleepy" were hand-over-hand and frequent movement to improve her arousal during academic sessions (id. at p. 5).

Physically, the iBrain plan indicated that the student was non-ambulatory, used a wheelchair for mobility, and she presented with "severe hypotonia" characterized by general muscle weakness, poor head and trunk control, and an inability to maintain an upright position without external support (see Parent Ex. B at pp. 16-18).  Additionally, the student did not roll, sit independently, crawl, or stand (id. at p. 17).  The student required total assistance to use her hands and upper extremities, and for all activities of daily living as well as transfers (id. at pp. 21-22).  According to the iBrain plan, the student had "very little, if any, functional vision" (id. at p. 23).

2. iBrain

The deputy director of special education at iBrain (deputy director) testified that iBrain "is a private and highly specialized special education program" for students with "acquired brain injuries or brain-based disorders" (Parent Ex. J ¶¶ 1, 5).  According to the deputy director, iBrain offers services on a 12-month school calendar basis during "an extended school day" which runs from 8:30 a.m. to 5:00 p.m. (id. ¶ 5).  Each student at iBrain requires 1:1 paraprofessional services, many require 1:1 nursing services, and the school offers related services including OT, PT, speech-language therapy, vision education, assistive technology, music therapy, and hearing education (id. ¶¶ 5, 8).

During the 2025-26 school year the student was in a 6:1+1 class at iBrain with 1:1 nursing and 1:1 paraprofessional services throughout the school day (Parent Exs. B at pp. 5, 46; J ¶¶ 10; 11).  Her "learning sessions" were a combination of 1:1 instruction, collaborative push-in sessions, and focused small group activities with classmates, and she was reportedly "most responsive when tactile materials and auditory cues" were included (Parent Ex. B at p. 5).  Sessions focused on communication skills and sensory regulation (id.).  Staff at iBrain developed annual goals for the student to improve her ability to attend to read-alouds and decode CVC words (literacy); tolerate and differentiate various textures (math); and attend to a group activity maintaining focus and arousal (social skills) (id. at pp. 32-35).

The July 2025 iBrain plan indicated that the student received daily, 60-minute sessions of individual speech-language therapy focusing on improving her receptive, expressive, and pragmatic language skills, ability to manage her secretions and tolerate oral stimulation, and ability to use a single switch to communicate (see Parent Ex. B at pp. 9-15, 40-43, 46).  The student received daily 60-minute sessions of individual PT, with goals focusing on improving her ability to "self-orient her head back to midline on the headrest of her activity chair," and lift her head up and hold the position for 30 seconds (id. at pp. 15, 39-40, 46).  Daily, 60-minute sessions of individual OT addressed the student's needs in the areas of academics, play/leisure and self-care goals (id. at pp. 18-22, 36-38, 46).  To improve the student's "sensory access and awareness," she received three 60-minute sessions per week of individual vision education services targeting her ability to sustain visual attention, and attend to auditory and olfactory input (id. at pp. 22-24, 43-44, 46).  The student also received one 60-minute session per week of group music therapy, to help her achieve cognitive and communication goals "faster and more efficiently" (id. at pp. 24-25, 35-36, 46).

The iBrain plan reflected an extensive list of the environmental, human, and material resources needed to address the student's academic, social, and physical development management needs (see Parent Ex. B at pp. 26-27).  Further, the iBrain plan included an individualized health plan that reflected the student's medical history/diagnoses and risks to the student, which included injury related to seizures, ineffective airway clearance, nutritional deficiency due to inability to consume food orally, aspiration due to improper feeding technique or positioning, and injury or skin breakdown due to decreased mobility and incontinence (see id. at pp. 27-30).  Staff at iBrain identified assistive technology devices for the student including adaptive seating, activity chair, and a wheelchair, and the school supports required including training in: seizure safety, two-person lift, g-tube use, aspiration precautions, low oxygen precautions, direct instruction, vision adaptation, and use of orthotics and adaptive equipment (id. at pp. 46-47).  Special transportation for the student included door-to-door pick up and drop off with limited travel time, nurse, air conditioning, car seat with lap belt, lift bus, wheelchair, and medical equipment (id. at p. 50).

The deputy director testified that iBrain determined that a 6:1+1 class was appropriate for the student because "she require[d] a very small class size with limited distractions," including dimmed lights and limited noise, in order to make progress (Sept. 18, 2025 Tr. pp. 75, 79-80).  He further testified that when the student began at iBrain during the 2024-25 school year, she was evaluated and the evaluators determined the frequency and duration of her related service sessions, which were delivered on both a push-in and pull-out basis (Sept. 18, 2025 Tr. pp. 80-81).  Regarding progress, the deputy director testified that student progress toward education plan goals was tracked daily, with more "formal" assessments conducted four times per year, at which time quarterly progress reports were prepared (Sept. 18, 2025 Tr. pp. 85-86).[9]

Contrary to the IHO's finding, review of the student's July 2025 iBrain plan as discussed above shows that it reflected assessment results, the student's present levels of performance, and goals to be worked on, and identified the various supports, resources, services, and specially designed instruction the student required (see Parent Ex. B).  Additionally, regarding the IHO's finding that the record lacked information about the provider's name or credentials, the iBrain education plan identifies the professionals and staff responsible for the development of the plan, and the deputy director testified that it was iBrain's policy to "not allow anyone to be with the student unless they [we]re licensed professionally" (Sept. 18, 2025 Tr. p. 87).

Turning to the issues the district raises on appeal, the district asserts that the parent failed to show that iBrain was appropriate in part because the hearing record did not include a schedule or attendance records showing how many days the student attended school or how many related service sessions she received.  The district is correct that the hearing record does not include the student's iBrain schedule for the 2025-26 school year, and although the deputy director testified that he could not "regurgitate that in detail," he testified "in general" what her schedule looked like, and the district offered no evidence to contradict this testimony (Sept. 18, 2025 Tr. pp. 83-85).  According to the deputy director, the student arrived at iBrain between 8:30 a.m. and 9 a.m. each day, at which time her paraprofessional "prepare[d] her for the day" (Sept. 18, 2025 Tr. p. 83).  At 9:00 a.m., the student began her "services," that included "an array of either academics or related services up until 12:00" p.m., at which point she got "a break" (Sept. 18, 2025 Tr. pp. 83-84).  Beginning at 1:00 p.m. the student received "an assortment of services all the way to" 4:00 p.m., at which time her paraprofessional conducted ADLs with the student and prepared her for dismissal at 4:30 to 5:00 p.m. (Sept. 18, 2025 Tr. pp. 84, 106).  The deputy director testified that the student received "at least two hours of academic instruction every day" broken down into 30 minute increments of 1:1 direct instruction from the teacher, 30 minutes of group instruction, and 30 minutes of teacher instruction pushed into a related service session, and acknowledged that the majority of the student's schedule consisted of related services (Sept. 18, 2025 Tr. pp. 84-85).

To the extent that the district is intimating that the lack of attendance records suggests there may have been an issue with the frequency of the student's attendance, the deputy director testified on September 18, 2025 that he observed the student in her classroom "last week," that he was aware some of her related service sessions were push-in through his observation of her, he saw the student's 1:1 nurse "often," and he was not "aware of any extended absences for [the student] during the 2025-26 school year so far" (Sept. 18, 2025 Tr. pp. 79, 82, 86-87, 92).[10]  According to the deputy director, if a student needed to attend remotely, the student's nurse and paraprofessional would go to the student's home and the student would receive "all of their services remotely"; however, he did not believe the student had attended remotely any time during the 2025-26 school year and that she had "very, very good in-person attendance" (Sept. 18, 2025 Tr. pp. 91, 92).

Additionally, the district argues that the student's "academic instruction" at iBrain focused on skills "distinct from actual academics."  The deputy director testified that the student's academic program consisted of two hours of 1:1 instruction per day, broken into three domains: math, English language arts (ELA)/language, and social skills (Sept. 18, 2025 Tr. pp. 107-08).  He stated that the teachers determined a student's individualized curriculum based on the results of the "Brigance assessment," which targeted the specific skills the student needed to develop and from where the teachers developed a student's goals (Sept. 18, 2025 Tr. pp. 109-110).  In answering a question about the math and ELA goals the student was working on during the 2025-26 school year, the deputy director stated that the student was "very, very, very low cognitively," and therefore, much of her instruction was "developmental" (Sept. 18, 2025 Tr. pp. 111-12).  For example, he testified that the student's goal to tolerate and identify different textures was a "pre-math" goal, and in ELA the student was working on sustaining "her attention to a read aloud" (Sept. 18, 2025 Tr. p. 112).  Contrary to the district's argument, given the student's cognitive and developmental deficits, that iBrain is working on skills that do not appear to be traditionally "academic" in nature does not render those goals inappropriate, rather, they address the student's needs as identified by iBrain (see Parent Ex. B at pp. 5-7).

Regarding the district's assertion that the parent failed to prove the appropriateness of the student's nursing services, the deputy director testified that the student's 1:1 nurse was "an RN" who addressed the student's need for g-tube feedings, seizure monitoring and medication administration if necessary, and monitoring her congestion for the need for suctioning (Sept. 18, 2025 Tr. pp. 87-88).  As for transportation, the deputy director testified that the student's bus ride was less than 60 minutes and she was accompanied by the 1:1 nurse (Sept. 18, 2025 Tr. pp. 88-89).  While these technical and highly specialized services do not typically fall under scrutiny when determining whether or not a program is appropriate where there is evidence that they are being provided in accordance with general contract specifications, the unrebutted testimony indicates the student was receiving the required services necessary to ensure she was able to attend and participate in the program at iBrain.  Based on the evidence in the hearing record, the documentary evidence presented is sufficient to demonstrate that iBrain was specially designed to meet the student's needs during the 2025-26 school year.

C. Equitable Considerations

As the parent met her burden to demonstrate the appropriateness of iBrain for the 2025-26 school year, the next issue to be addressed is whether equitable considerations support the parent's request for district funding of the student's attendance at iBrain for the 2025-26 extended school year.  The IHO determined that the parent failed to cooperate with the district by not providing requested medical reports and accommodation forms, and did not cooperate with the hearing process by refusing to comply with subpoenas to testify (IHO Decision at p. 9).

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"]).

1. Parent's Failure to Testify

I find no basis to disturb the IHO's finding that the parent's failure to appear at the impartial hearing to testify would warrant a reduction in the award of tuition to the parent.

State regulations set forth the procedures for conducting an impartial hearing and address, in part, minimal process requirements that shall be afforded to both parties (8 NYCRR 200.5[j]).  Among other process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]).  Furthermore, each party "shall have up to one day to present its case" (8 NYCRR 200.5[j][3][xiii]).  State regulation provides that the IHO "shall exclude any evidence that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" and "may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c], [d]).  In addition, an IHO has the authority to issue a subpoena if necessary (see 8 NYCRR 200.5[j][3][iv]).

Generally, 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]).  At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (Letter to Anonymous, 23 IDELR 1073).  State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.

In its due process response, the district requested that the parent "be ordered to appear" (Dist. Response to Due Process Compl. Not. at p. 2).  Then, while discussing the number of witnesses that each party would present at the impartial hearing, the parent's attorney represented that "[w]e intend to bring the parent and someone from the school" (August 19, 2025 Tr. p. 6).  The IHO inquired as to the need for subpoenas at which point the district stated that as "they are bringing the parent" there would be "no witness subpoenas" (id.).  The IHO again confirmed with parent's counsel that the parent would actually be attending at which time parent's counsel confirmed "[t]here is no reason for the parent to not appear" (id. at p. 7).

Included in the hearing record are a series of emails and the parent's motion opposing the issuance of subpoenas (see IHO Ex. I).  As indicated in these documents, after the preliminary conference, the district requested that a subpoena be issued to ensure the parent's appearance at the hearing (IHO Ex. I at p. 3-4).  In response, parent's counsel submitted a Brief in Opposition to the subpoena request which is included in the hearing record (IHO Ex. I pp. 2, 23-35).  In response to this motion, the IHO granted the district's motion for a subpoena thus compelling the parent to attend the impartial hearing (IHO Ex. I at p. 1).[11]  At the impartial hearing, prior to opening statements, the IHO inquired as to whether the parent was available to testify during the first day of hearings (September 9, 2025 Tr pp. 22). Counsel for the parent responded that "there's nothing in the record to show that the subpoena request was properly served on the parent" (id.).  Counsel responded further that the parent was requiring personal service of the duly executed subpoena, to which the IHO responded that she would be "forced to give [the district] time" to serve the parent personally, albeit such a requirement should be unnecessary given that parent's counsel had immediate access to the parent (id. at p. 23).  After further argument against producing the parent from parent's counsel, the IHO stated simply that "no matter what your position, I made my ruling and I gave an order" (id. at p. 26).  Parent's counsel responded with "until the [district] not only personally serves but then actually goes to seek enforcement of the subpoena going to State Supreme Court, the parent is not appearing" (id. at p. 26).  It was at this point that the IHO advised the parties that she would "have no choice" but to find a negative inference against the parent for not appearing at the impartial hearing (id. at p. 27).

As a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the IHO regarding the conduct of the impartial hearing (see Application of a Student with a Disability, Appeal No. 14-090; Application of a Student with a Disability, Appeal No. 09-073; Application of a Child with a Disability, Appeal No. 05-026; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-061).  "IHOs have the inherent authority 'to manage hearings to avoid needless waste and delay.'" B.G. v. City of Chicago Sch. Dist., 299, 243 F. Supp. 3d 964, 979 [N.D. Ill. 2017], aff'd. B.G. v. Bd. of Educ. of City of Chicago, 901 F.3d 903 [7th Cir. 2018]).  As noted above, the parties to an impartial hearing have the right to compel attendance of witnesses (see 34 CFR 300.512[a][1]-[2]; 8 NYCRR 200.5[j][3][xii]).  Further, an IHO may ask questions of attorneys or witnesses for the purposes of clarification or completeness of the hearing record (8 NYCRR 200.5[j][3][vii]).  If a witness refuses to appear to testify, the IHO may issue a subpoena to compel the witness's testimony (see 8 NYCRR 200.5[j][3][iv]).  A parent is not shielded from being compelled to testify by the issuance of a subpoena.  To the contrary, "[t]he IDEA envisions a 'cooperative process' between parents and educators, who are expected to work together to determine whether the child has a disability, whether that disability requires special education, and what any special education should look like." (Schaffer, 546 U.S. 53).  This extends to the impartial hearing process as reflected in requirements such as the resolution process (see 34 CFR 300.510[b]; 8 NYCRR 200.5[j][2]).  While a parent is permitted to be "accompanied and advised" by counsel or an individual with special knowledge or training regarding students with disabilities (see 34 CFR 300.512[a][1]; 8 NYCRR 200.5[j][3][vii]), enlisting the aid of such a representative does not absolve a parent of all responsibility as a party to the proceeding.

At least one court has found that conduct occurring at the impartial hearing may be considered as an equitable consideration (B.D. v. Eldred Cent. Sch. Dist., 661 F. Supp. 3d 299, 317 [S.D.N.Y. 2023]).  The parent's counsel's strategy in refusing to produce the parent to appear and testify at the impartial hearing appeared to be for the purpose of obstructing the hearing process and aimed to confound the district and the IHO, and as such was impermissible.  While the parent's counsel was free to strategize by deciding whether to ask the parent questions of his own during her testimony, he was not at liberty to impede the opposing party's right to call witnesses as envisioned by the IDEA, nor was it justifiable to disregard the IHO's directives.[12]

Contrary to the parent's arguments on appeal, the IHO acted within her broad discretion to issue the subpoena.  This record makes clear that counsel for the parent had no intention of complying with the IHO's duly issued subpoena despite initially representing that the parent would appear at the hearing.  Upon counsel's representation that even if properly served the parent would not appear absent an order from the State Supreme Court, such conduct indicates not only  disregard for the IHO's authority and her reasonable directives, with no explanation as to why the parent, the party who initiated the due process proceeding, was now refusing to participate in the hearing, but also that counsel’s representation prior to the hearing that the parent would appear was quite possibly made in bad faith.  Such conduct in the context of general due process considerations, and the IHO's broad purview to ensure due process for both parties and the functional conduct of the hearing, supports the IHO's determination that it should weigh against the parent as an equitable consideration supporting a reduction of the awarded relief.

The IDEA does not "specify what particular remedies, including penalties or sanctions, are available to due process hearing officers or to decision makers in State-level appeals.  The specific authority of hearing officers and appeal boards, including the types of sanctions that are available to them, generally will be set forth in State law or regulation" (Letter to Armstrong, 28 IDELR 303 [OSEP 1997]).  IHOs and SROs may assert appropriate discretionary controls over the due process and review proceedings and, as noted, an IHO has the authority to issue a subpoena if necessary (see 8 NYCRR 200.5[j][3][iv]); however, in New York, IHOs have not been expressly granted contempt powers (Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 02-049).  Nevertheless, SROs have noted that adverse inferences may be drawn when private agencies, which contracted for services with the parents in the proceeding, failed to respond to subpoenas (Application of a Student with A Disability, 24-394; Application of a Student with A Disability, Appeal No. 24-237; Application of a Student with A Disability, Appeal No. 24-031).  The same is true if the parent, a party to the matter, refuses to respond to a subpoena, especially when the parent is the party who brought the proceeding. Therefore, I find that a reduction in the tuition award is warranted in this instance in the amount of 15 percent.  Moreover, I do not find that the IHO erred in applying an adverse inference against the parent for her failure to appear at the impartial hearing and I will not disturb this finding (IHO Decision at pp. 13-14).[13]

D. Pendency

The parent asserts that the IHO erred in not issuing a pendency order for the district to fund the student's attendance at iBrain as well as transportation and nursing services.  The parent's position with respect to pendency is that iBrain was the student's "operative placement."  The district argues that pendency lies in the September 2023 CPSE IEP as determined by the IHO.

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[14]  Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).  The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).  A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]).  The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906).  Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).  Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171).  However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).  Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).

Here, there is no evidence in the record that the parent applied for admission to public school prior to the time of the referral of the student for special education (Dist. Ex. 11).  The IDEA provides that, for a student who is "applying for initial admission to a public school," for pendency purposes, the student "shall, with the consent of the parents, be placed in the public-school program until all . . . proceedings have been completed" (20 U.S.C. § 1415[j]; see Educ. Law § 4404[4][a]; 34 CFR 300.518[b]; 8 NYCRR 200.5[m]).  Under the circumstances, this provision governs the student's pendency placement and, therefore, the proposed program and placement identified in the September 2023 CPSE IEP, particularly given the lack of evidence in the hearing record that the parent challenged the proposed program through a due process complaint notice, would have constituted the student's pendency placement for the duration of the proceedings, subject to the parent's consent.

However, instead of consenting to the initial provision of special education services by the public school as pendency, the parent elected to unilaterally place the student at iBrain without the consent of district officials.  The parent argues that iBrain was the student's "operative placement" for purposes of pendency and that the district is therefore responsible to fund it in the first instance.  Contrary to the parent's arguments, the operative placement test is not applicable in these circumstances and the parent's unilateral enrollment of the student at iBrain—a placement that the district has not agreed to and which has not been found appropriate in any administrative proceeding—before the filing of the due process complaint notice did not change pendency (Ventura de Paulino, 959 F.3d at 536).  In declining to apply "operative placement" as requested by the parents in Ventura de Paulino, the Second Circuit Court stated that:

It bears recalling that the term "operative placement" has its origin in cases where the school district attempts to move the child to a new school without the parents' consent, or where there is no previously implemented IEP so that the current placement provided by the school district is considered to be the pendency placement for purposes of the stay-put provision.

(Ventura de Paulino, 959 F.3d at 536 [internal footnotes omitted]).  As to the latter circumstance, since the district did not arrange for or agree to the student's placement at iBrain, it was not a placement provided by the district as described by the Second Circuit.  Moreover, as authority for the circumstance described, the Second Circuit cited Thomas v. Cincinnati Board of Education, 918 F.2d 618, 625-26 (6th Cir. 1990), which determined a student's private home instruction constituted pendency rather than the student's initial unimplemented IEP (see Ventura de Paulino, 959 F.3d at 536 n.72).  However, as explained by the Court itself, the Sixth Circuit's decision in Thomas regarding the "operative placement" test was abrogated by the subsequent promulgation of the federal regulations governing the IDEA (N.W. v. Boone Cty. Bd. of Educ., 763 F.3d 611, 618 [6th Cir. 2014] ["The Thomas court's approach may have been correct in 1990, but the Department of Education's promulgation of § 300.116 renders that interpretation obsolete"]).

The parent in this matter may have preferred to unilaterally place her daughter at iBrain instead of availing herself of the option of placing her daughter in the district's recommended programming during the pendency of the proceedings, which she was free to do, but she may not recoup such expenses for private schooling on a pendency theory.  Accordingly, I find no basis to disturb the IHO's pendency finding.

E. Independent Educational Evaluations (IEE)

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]).[15]

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]).  As the hearing record demonstrates, the parent did not challenge a specific evaluation and as the IHO indicated, iBrain was in possession of comprehensive and current evaluations of the student whether or not they ultimately shared them with the district and the district explained their reasoning for conducting the evaluations they did with the student and why some of the evaluations were limited in application or usefulness.  Thus, I see no reason to disturb the IHO's finding on this issue.

VII. Conclusion

Based on the above, iBrain was not the student's stay-put placement during the pendency of these proceedings. Additionally, and upon an independent review of the hearing record, I find that the district failed to meet its burden to demonstrate that it offered the student a FAPE for the 2025-26 extended school year, the parent met her burden to demonstrate the appropriateness of iBrain for the student for the 2025-26 school year, and equitable considerations warrant a reduction of 15 percent of the award of funding for the costs of the student's attendance at iBrain for the 2025-26 school year.

I have considered the parties' remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, the IHO Decision dated September 24, 2025, is modified by reversing those portions that found that the district offered the student a FAPE for the 2025-26 school year and that the parent failed to meet her burden to demonstrate the appropriateness of iBrain for the student; and

IT IS FURTHER ORDERED that, the IHO Decision dated September 24, 2025 is modified to direct the district to fund the student's tuition at iBrain for the 2025-26 school year, including nursing and transportation costs, at a 15 percent reduction of the contracted rates.