STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-628
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Law Offices of H. Jeffrey Marcus, P.C., attorneys for petitioner, by Marcy Hagen, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Toni L. Mincieli, Esq.
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 Yad Yisroel Helping Hands Academy (Yad Yisroel) for the 2023-24 and 2024-25 school years. The appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
At all relevant times, the student was parentally placed at Yad Yisroel and eligible for special education as a student with autism (Dist. Exs. 1 at p. 5; 2 at p. 5).[1]
The parent signed an enrollment contract with Yad Yisroel for the student's attendance during the 2023-24 school year on March 14, 2023 (Parent Ex. F at pp. 1, 3).[2]
A CSE convened on April 27, 2023 and developed an IEP with a projected implementation date of July 5, 2023 (Dist. Ex. 1 at pp. 1, 33). The April 2023 CSE recommended 12-month programming consisting of a 6:1+1 special class placement for academic instruction, together with three 30-minute sessions per week of individual occupational therapy (OT), two 30-minute session per week of individual physical therapy (PT), four 30-minute sessions per week of individual speech-language therapy, and full-time individual paraprofessional services for behavioral support (id. at pp. 25-26). The CSE also recommended use of an individual dynamic display speech generating device (SGD), testing accommodations, and special transportation services (id. at pp. 26, 28-29, 30). For the parent, the CSE recommended four 60-minute sessions per year of group parent counseling and training (id. at p. 25).
The parent notified the district by a letter dated June 19, 2023 that she believed the April 2023 IEP was not appropriate to meet the student's unique needs, that she had not received a school location letter, and that it was her intent to re-enroll the student in Yad Yisroel for the 2023-24 school year (Parent Ex. C at pp. 1-2, 5).
The parent signed an enrollment contract with Yad Yisroel for the student's 2024-25 school year on April 11, 2024 (Parent Ex. E at pp. 1, 3).
On May 17, 2024, a CSE convened to create an IEP with a projected implementation date of July 2, 2024 (Dist. Ex. 2 at pp. 1, 35). The May 2024 CSE recommended 12-month programming consisting of a 6:1+1 special class placement for academic instruction, together with three 30-minute sessions per week of individual OT, two 30-minute session per week of individual PT, four 30-minute sessions per week of individual speech-language therapy, and full-time individual paraprofessional services for behavioral support (id. at pp. 27-28). The CSE also recommended use of an individual dynamic display SGD, testing accommodations, and special transportation services (id. at pp. 28, 30-31, 32). For the parent, the CSE recommended four 60-minute sessions per year of group parent counseling and training (id. at p. 27).
By letter dated June 21, 2024, the parent notified the district that she believed the May 2024 IEP was not appropriate for the student and that she had not received a school location letter, therefore, she was re-enrolling the student in Yad Yisroel for the 2024-25 school year (Parent Ex. B at pp. 1-2).
A. Due Process Complaint Notice
In a due process complaint notice dated March 13, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 and 2024-25 school years on various procedural and substantive grounds (Parent Ex. A at pp. 1-2).
Regarding the 2023-24 school year, the parent alleged, among other arguments, that the district failed to adequately identify the student's needs and that the CSE failed to create an IEP that addressed the student's needs (Parent Ex. A at p. 2). The parent also asserted that the district failed to provide her with a written offer of placement letter for the 2023-24 school year (id.).
Regarding the 2024-25 school year, the parent again alleged that the district failed to adequately identify the student's needs and that the CSE failed to create an IEP that addressed the student's needs (Parent Ex. A at p. 2). The parent asserted that the district failed to provide her with a written offer of placement until July 3, 2024 and that parent was unable to contact anyone at the assigned public school in order to schedule a tour (id.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on June 6, 2025 (Tr. pp. 13-104).[3] In a decision dated August 22, 2025, the IHO found that the district conceded that it failed to offer the student a FAPE for the 2023-24 school year (IHO Decision at pp. 3, 21). The IHO concluded that the district failed to meet its burden of proof that it offered the student a FAPE for the 2024-25 school year (id. at p. 14).Regarding the parent's case, the IHO held that the hearing record failed to show that Yad Yisroel was an appropriate unilateral placement for either the 2023-24 or 2024-25 school years (id. at pp. 19, 20). Accordingly, the IHO did not reach the issue of equitable considerations and dismissed the parent's claims (id. at pp. 20-21).
IV. Appeal for State-Level Review
The parent appeals, the district answers,[4] and the parent submits a reply. The parties' familiarity with the issues raised in the parent's request for review, the district's answer and the parent's reply are presumed and, therefore the allegations and arguments will not be recited here in detail. The parents argues that the IHO erred in determining that the parent failed to meet her burden of proving that Yad Yisroel's services were appropriate for the student; and whether equitable considerations weigh against the parent's request for relief.
The district argues that the SRO should dismiss the parent's appeal based on procedural noncompliance. Specifically, the district asserts that the parent's request for review was defectively verified. In her reply, the parent concedes that the verification was signed before the request for review and memorandum of law, but argues that this should not result in dismissal.
V. Discussion
The parent has not properly initiated an appeal in this case. The practice requirements of Part 279 of the State regulations, which govern appeals to the Office of State Review, require that an appeal from an IHO's decision be initiated by timely personal service of a notice of intention to seek review, followed by a notice of request for review, verified request for review, and other supporting documents, upon the respondent (see 8 NYCRR 279.2[a], 279.4[a]). A notice of intention to seek review shall be personally served within 25 days after the date of the IHO's decision to be reviewed (8 NYCRR 279.2[a]-[b]).[5] However, an SRO "may, in his or her discretion . . ., review the determination of an [IHO] notwithstanding a party's failure to timely serve a notice of intention to seek review" (8 NYCRR 279.2[f]).
The practice regulations require verification of all pleadings submitted to an SRO in connection with an appeal (see 8 NYCRR 279.7[b]). When the appeal is taken by the student's parent or parents, "[t]he request for review shall be verified by the oath of at least one" such petitioner (see id.). Verification of a document entails a sworn statement that the affiant knows the contents of the document and knows the contents of the document to be true; or, with respect allegations made "upon information and belief," the affiant believes the allegations to be true (see 8 NYCRR 279.7[b][1]).
Here, the district correctly asserts that the affidavit of verification that accompanied the request for review was executed on September 30, 2025, one day prior to October 1, 2025, the date of the request for review (see Req. for Rev. at p. 10; Parent Verification of Req. for Rev.; Answer ¶ 7). As the district asserts, the parent could not have verified the contents of a document that was not yet completed. The integrity of administrative adjudication depends upon adherence to verification and service requirements that are prescribed by the practice regulations. Verification is not a mere formality; it is the sworn attestation that the pleading's factual assertions are true to the knowledge of the verifier. Service of properly verified pleadings within the stated timelines is likewise essential. When either requirement is disregarded, the pleading is procedurally defective. Verification presupposes a completed submission; the practice regulations do not license a piecemeal oath that later is "completed" by materials potentially added after the fact. Such a practice undermines the very assurance that verification is designed to provide.
The parent's reply does not provide a basis for a different result. The reply does not explain the factual circumstances or reasons why the verification was signed on the day prior to the day that the request for review was completed and merely argues that it does not matter in this case, or that this instance was unlike other cases with a greater period of time between the verification and a request for review that was completed days later. However, the argument is unconvincing. To hold otherwise would permit parties to convert deadlines into negotiable suggestions and transform the verification requirements in State regulations into a malleable formality.
The district's argument is correct and the parent's initiating pleading in this instance is defective. Consequently, the request for review is rejected as unverified.
VII. Conclusion
In summary, the appeal must be dismissed due to the parent's failure to initiate the appeal in accordance with the practice regulations governing appeals before the Office of State Review.
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations herein.
THE APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[2] The 2023-24 Yad Yisroel enrollment contract was signed by a representative of Yad Yisroel on May 11, 2023 (Parent Ex. F at p. 3).
[3] A prehearing conference was held on April 16, 2025 (Tr. pp. 1-12).
[4] Although the district served and filed a document labeled "Verified Answer and Cross-Appeal," review of the document as a whole shows that it does not contain a cross-appeal in that it does not identify any precise rulings, failures to rule, or refusals to rule of the IHO of which the district seeks review (see 8 NYCRR 279.8[c][2]). Accordingly, for purposes of this decision, the pleading will be referenced as the district's answer.
[5] The practice regulations envision an efficient process by which a notice of intention to seek review is served upon the respondent approximately 10 days before a request for review is served (but not later than 25 days after the date of the IHO decision). Among other things, the "service of a notice of intention to seek review upon a school district serves the purpose of facilitating the timely filing of the hearing record by the district with the Office of State Review" (see Application of a Student with a Disability, Appeal No. 24-083; Application of a Student with a Disability, Appeal No. 21-054; Application of a Student with a Disability, Appeal No. 16-040; Application of a Student Suspected of Having a Disability, Appeal No. 12-014). The district must file the completed and certified record with the Office of State Review within 10 days after service of the notice of intention to seek review (see 8 NYCRR 279.9[b]).