STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-854
Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability
Appearances:
Liz Vladeck, General Counsel, attorneys for petitioner, by Frank J. Lamonica, Esq.
Law Office of Philippe Gerschel, attorneys for respondent, by Philippe Gerschel, 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 district) appeals from a decision of an impartial hearing officer (IHO) which found that Learning Learners LLC (Learning Learners) had standing to file a due process complaint notice on behalf of a parent of a student with a disability regarding its provision of services to the student during the 2025-26 school year. The appeal must be sustained.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programming for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely 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, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed, and given the disposition of this matter, the facts and procedural history of the case will not be recited in detail. Briefly, a CSE convened on September 29, 2022, and, after finding the student eligible for special education as a student with a learning disability, developed an IESP with a projected implementation date of October 13, 2022 (Dist. Ex. 5).[1] The September 2022 CSE recommended that the student receive five periods per week of group special education teacher support services (SETSS) and one 30-minute session per week of group counseling services (id. at p. 9).[2], [3]
By prior written notice dated September 29, 2022, the district informed the parent of the September 2022 CSE's recommendations in writing (Dist. Ex. 6).
The parent signed a form on April 23, 2025 that indicated that the student was placed in a non-public school at her expense, and that she wanted the district to provide the student's special education services for the following school year (Parent Ex. D). The parent emailed the form to the district and copied the "Learning Learners office" (id.).
The parent entered into an agreement with Learning Learners on April 29, 2025, wherein it was indicated that the district did not implement the student's special education and related services for the 2025-26 school year, and that the parent asked Learning Learners to "provide the required" special education and related services to the student "to whatever extent possible" for the 2025-26 school year (Parent Ex. F). As part of the agreement's terms, the parent agreed to "retain counsel at [her] own expense and file a due process complaint [notice]" in order to obtain funding for the services provided by Learning Learners for the 2025-26 school year (id. at p. 1). The agreement's terms also specified that the parent "accept[ed] full responsibility for any additional legal fees and or costs that may [have been] incurred by Learning Learners . . . due to any subpoenas including any costs associated with the production of documents in connection with any subpoenas issued by the [district] as part of [the parent's] pursuit of funding via the Impartial Hearing Office" (id. at p. 2). The parent also confirmed that she was liable for the costs of services provided by Learning Learners in the event she was unable to "secure funding from the [district] or elsewhere" (id.).
In a letter dated August 22, 2025, an attorney sent a letter to the district indicating that the parent consented to the district implementing all recommended services on the student's September 2022 IESP (see Parent Ex. E). The letter was written in an unusual manner insofar as it was not on letterhead of the law firm and was written in the first person as if drafted by the parent, but then signed by the attorney and sent from what appears to be the email address of a non-attorney employee with the law firm (id.) The letter also indicated that the parent "ha[d] no way of implementing" the recommended services, and that she "had no choice but to make efforts to implement the [September 2022] IESP" and seek reimbursement or direct payment from the district at a rate that exceeded the district's "standard rate" (see id. at p. 1).
A. Due Process Complaint Notice
In a due process complaint notice dated September 3, 2025, it was indicated that counsel "ha[d] been retained" to represent the parent, and that counsel was filing the due process complaint notice on the parent's behalf (Parent Ex. A at pp. 1-2). The due process complaint alleged that the district denied the student with a FAPE for the 2025-26 school year, as there was a delay in convening a CSE meeting for the student, and as the student's September 29, 2022 IESP was "outdated and expired" (id. at pp. 2-3). It was also alleged that the parent had been unable to locate district-affiliated providers for the student's recommended special education services, and that the district had failed to implement the recommendations of the September 2022 IESP (id. at p. 3). According to the complaint the parent reserved her right to ask for compensatory education services for any special education services not provided for the 2025-26 school year (id.). As relief sought, the complaint listed, among other things, an order that the district fund the program outlined in the September 2022 IESP for the 2025-26 school year "at the provider's contracted rate," and that the district be ordered to fund a bank of compensatory education services for all services which were not provided, including pendency services, and that such services be funded at the prospective provider's contracted rate (id. at pp. 3-4). The complaint contained assertions that pendency was based upon a prior IHO decision in 2024 that constituted the "last agreed-upon program" (id. at p.2).
B. Impartial Hearing Officer Decision and Preceding Events
At some point in the impartial hearing proceedings, an IHO issued an undated omnibus standing order with the purpose of "set[ting] firm expectations of the [p]arties to resolve the matter fairly and efficiently" (see generally, Interim IHO Decision).[4]
Prior to the impartial hearing, by email dated October 6, 2025, the district submitted requests for the IHO to issue documentary and testimonial subpoenas, which included a request that the parent appear at the impartial hearing and testify (IHO Ex. I at pp. 4-6). The district's request that the parent testify at the impartial hearing was ultimately granted on October 10, 2025 (id. at p. 3). By email dated October 10, 2025, counsel, who purportedly represented the parent, asked, among other things, if the parent's testimony would be limited to the district's burden in this matter, as well as if it would have been possible to submit a late testimonial affidavit for the parent that the district could then cross-examine, rather than having the parent provide direct testimony pursuant to the district's granted request (id. at pp. 1-2). By email dated October 10, 2025, the IHO declined to limit the testimony of the parent and indicated that a late disclosure would not be accepted, absent consent by the district (id. at p. 1).
The impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on October 22, 2025 (Tr. pp. 1-58).
In a decision dated November 17, 2025, the IHO first addressed standing for the parent's claims, and noted that the parent testified to not being aware of the purpose for the impartial hearing, that she did not hire an attorney to represent her on the matter, but also that she clarified that she hired Learning Learners to hire an attorney on her behalf (id. at pp. 3-4). The IHO further noted that, despite that testimony, there was no evidence in the hearing record "as to when or how [the p]arent had authorized the hiring of [counsel,] or the filing of the [due process complaint notice]" (id. at p. 4). The IHO went on to note that the contract signed between the parent and Learning Learners specifically indicated that the parent would "retain counsel at their own expense and file a due process complaint in attempts to obtain funding for the Special Education and related services program for the 2025-26 school year" (id. quoting Parent Ex. F [internal quotation marks omitted]). The IHO additionally noted that the parent indicated that the purpose of the impartial hearing was to "approve the case," which the IHO found indicated that the parent "was aware that a [d]ue process [complaint notice] had been filed on [her] behalf and on behalf of [the s]tudent" (IHO Decision at p. 4). The IHO determined that the parent "authorized" Learning Learners to file a due process complaint notice on her behalf, and that the parent was aware that the due process complaint notice had been filed, thereby finding that there was standing for the claims filed on behalf of the parent (id.).
With respect to pendency, the IHO disagreed with the district that pendency was not available for claims under Section 3602-c, and the IHO ordered a pendency award of the services that the parent requested, which was based on a prior IHO decision dated May 15, 2024 (IHO Decision at pp. 4). The IHO ordered the district to fund pendency services of SETSS at a rate of $215 per hour (id. at p. 10). The IHO also found that there was no dispute that the student was entitled to special education services pursuant to the September 2022 IESP, that there was credible testimony of the district's failure to implement the student's services, and that the district failed to introduce any evidence to contradict those findings (id. at p. 7). The IHO therefore found that the district failed to offer the student a FAPE for the 2025-26 school year (id.). The IHO additionally found that the parent met her burden in establishing that the unilaterally obtained SETSS provided by Learning Learners was appropriate to meet the student's needs (id.). The IHO also found that the $210 rate charged by Learning Learners, of which $70 per hour was paid directly to the provider, was "unreasonable as a matter of law," and that a reduction of the rate to $107.70 per hour was appropriate under equitable considerations (id.). The IHO also denied the parent's request for compensatory education services, because while the student should have received the services recommended in the September 2022 IESP, any services that were not provided to the student would have been provided through the IHO's pendency order, as pendency ran from the filing of the due process complaint notice, which was filed at "the start of the 10-month school year" (id. at pp. 9-10). The IHO ordered the district to fund the student's unilaterally obtained SETSS at a rate of $107.70 per hour for the 2025-26 school year, for up to five periods per week, after submission of an affidavit from Learning Learners indicating the dates of service and total hours provided to the student (id. at p. 10). The IHO also indicated that the parent's claims for counseling services were withdrawn (id.). The IHO additionally ordered the district to convene a CSE meeting within 30 days and, if appropriate, develop an updated IESP (id.).
IV. Appeal for State-Level Review
The district appeals, contending that it was error for the IHO to find that Learning Learners had standing to file a due process complaint notice on the parent's behalf, as only a parent or school district may file a due process complaint notice under the IDEA and State Education Law, and that private entities, such as Learning Learners, lack standing to do so. The district contends that the IHO's conclusion is incongruent from relevant law regarding standing, as the IHO appeared to assume that "approve the case" meant that the parent was aware of the due process complaint notice being submitted on her behalf. The district points to a portion of the IHO decision which indicated that there was no evidence provided as to when or how the parent had authorized the hiring of counsel or filing of the due process complaint notice, as well as indicated that the contract signed by the parent with Learning Learners required the parent to retain counsel at her own expense. The district contends that the IHO's finding that the parent was aware that a due process complaint notice was filed did not equate to authorization being given to Learning Learners or counsel to file a due process complaint notice on her behalf. The district contends that the IHO relied on an assumption rather than on the hearing record, as required. The district also alleges that the parent was unaware of what the impartial hearing was regarding, that she testified that she did not hire a law firm for the matter, and that she was not seeking services for the school year at issue. The district additionally contends that the IHO erred in determining the proper pendency award to the student. The district also contends that the parent did not submit a 10-day notice, as required, or, if the parent did submit such notice, such notice contained misrepresented facts, or that the notice was invalid. The district asks that the matter be dismissed with prejudice, and that the IHO's decision be overturned.
Counsel has submitted an answer on behalf of the parent,[5] and asserts several facts without citation to the record. As part of those facts, counsel alleges on behalf of the parent, among other things, that the parent directly retained his law firm to represent her, not Learning Learners. Also as part of those allegations, counsel alleges that the parent's testimony during the impartial hearing "[r]eflected [c]onfusion, [n]ot [r]eality," as the parent's primary language is Hebrew, and "[s]he was being cross-examined by an adversarial party representative using legal terminology that would confuse even a native English speaker." Counsel also implies that the district was at fault for this "confusion," as the district "knew or should have known that [the p]arent had limited English proficiency," and the line of questioning by the district was "problematic." Counsel also asserts that the IHO properly awarded pendency, that the parent's 10-day notice was proper, that the IHO's determinations on the proper rate of services should be affirmed, and that the services provided by Learning Learners were appropriate. Counsel further makes several contentions regarding the district serving its pleadings on appeal directly to the parent, rather than counsel.[6]
In a reply to the answer, the district disputes the answer's contentions. Among other things, the district alleges that the answer failed to conform with practice regulations because much of the allegations in the answer were made without a basis in, or reference to, the hearing record on appeal. The district also contends that it was not improper to directly serve the parent with the request for review, as is consistent with practice regulations, and that counsel's office has a "practice of ignoring the [district's] requests for email consent" of service. The district further contends that the additional evidence submitted with the answer should not be considered. The district also contends that the answer improperly contains arguments outside of those raised in the request for review, such as the IHO's rate determination and the appropriateness of the services provided by Learning Learners, and that these contentions should be dismissed.[7]
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[8] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[9] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
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. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion - Standing
At the outset, I note that no cross-appeal challenging the IHO's factual findings was filed. Accordingly, the IHO's determinations that the parent lacked awareness of the purpose of the impartial hearing, chose not to hire an attorney and presented no evidence authorizing the hiring of counsel or the filing of the due process complaint notice have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]). Accordingly the remaining issue is whether third parties may hire attorneys and file due process proceedings in the place of parents.
As discussed further below, I find that Learning Learners did not have standing to bring claims in a due process proceeding against the district in this matter, or to direct the filing of a due process complaint notice on behalf of the student.
This particular due process proceeding arises under State law, which provides that a parent may seek an impartial hearing regarding "any matter relating to the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student" (Educ. Law § 4404[1]). State regulation defines parent to include:
"a birth or adoptive parent, a legally appointed guardian . . . ; a person in parental relationship to the child as defined in Education Law, section 3212; an individual designated as a person in parental relation pursuant to title 15-A of the General Obligations Law including an individual so designated who is acting in the place of a birth or adoptive parent (including a grandparent, stepparent, or other relative with whom the child resides); . . . a surrogate parent who has been appointed in accordance with section 200.5(n) of this Part[;] . . . [or a] foster parent . . . unless State law, regulations or contractual obligations with a State or local entity prohibit the foster parent from acting as a parent"
(8 NYCRR 200.1[ii]).[10] Further, State regulation indicates that "[i]f a judicial decree or order identifies a specific person or persons to act as the parent or make educational decisions on behalf of the student, then such person or persons shall be determined to be the parent for purposes of this Part, except that a public agency that provides education or care for the student, or a private agency that contracts with a public agency for such purposes, shall not act as the parent" (8 NYCRR 200.1[ii][4] [emphasis added]).
Therefore, in light of the above, a private entity lacks standing under State law and regulation to file a due process complaint notice on behalf of a student, as the language cited above illustrates that this process was intended to provide a private right of action only to disabled children and their parents.
Here, there is no dispute that the parent has legal authority to make educational decisions on behalf of the student. Additionally, while the agreement between the parent and Learning Learners in the hearing record discusses the filing of a due process complaint notice in order to seek funding for the private services provided to the student, it clearly states that the parent was to retain counsel at her own expense and file a due process complaint, not Learning Learners on behalf of the parent (Parent Ex. F at p. 1).
During the impartial hearing, counsel for the district asked the parent what the purpose of the hearing was, and the following exchange occurred:
"[the parent]: No, I just -- the agency told me that I have a hearing and I need to join.
[the district]: Okay. And do you know what the hearing is about?
[the parent]: No"
(Tr. pp. 27-28). Of particular note were the following two exchanges during cross-examination by the district and redirect examination:
"[the district]: Okay. And did you hire a law firm to help you with this matter?
[the parent]: No.
. . . [counsel on redirect]: You did not hire a law firm as you just testified, but did you authorize the agency to hire a law firm on your behalf?
[the parent]: Yes.
[counsel]: And you said earlier in your testimony that you were not seeking services for the school year, but that you did hire an agency to provide the services for the school year. Does that mean you didn't seek them out? They came to you? How did you. Essentially, my question is, how did you come to have this agency provide SETSS for your child?
[the parent]: Also, we did evaluation, like, about two, three years ago, if I'm not mistaken. And since then, it's just going on and on and on and I'm renovating the case. She does need help.
[counsel]: Okay.
[the parent]: I thought -- I thought she asked me about social therapy. Not like academic health.
[counsel]: Understood. Thank you. Just a moment. So, did the agency tell you you might have to appear at some hearings?
[the parent]: Yes.
[counsel]: All right. And what is your impression of your purpose? Why are we at the hearing today? As you were asked.
[the parent]: To approve the case since I cannot pay out of my own pocket"
(Tr. pp. 29-31).[11]
In light of the above, I find that the IHO erred rejecting the district's argument and finding standing for the claims in this matter. The parent clearly testified that she did not hire a law firm for this matter, that Learning Learners informed her of the impartial hearing, which she "need[ed] to join," and she testified that Learning Learners told the parent that she would need to appear for hearings (Tr. pp. 28, 30). I find it notable that the parent twice testified to Learning Learners, an entity with a strong financial interest in the outcome of the litigation, was directing her to appear for the impartial hearing, rather than any counsel doing so, suggesting strongly that an attorney client relationship between the parent and the attorney was lacking at the time of the impartial hearing. The parent also clearly testified that she "authorized" Learning Learners to retain a law firm on her behalf for this matter. As discussed above, Learning Learners, a private entity, does not have standing to pursue claims against the district in the administrative due process forum. Additionally, while the parent does have such standing, there is nothing in State law or regulation that indicates that she can assign that standing to a party that is otherwise excluded from the statutory and regulatory framework of the due process hearing system, thus, she has no authority to assign standing to a third party such as Learning Learners. Should Learning Learners be interested in pursuing claims to protect its financial interests there may be other forums available to do so, such as litigating available claims through the State court system. Furthermore, should Learning Learners, in a spirit of altruism, be seeking an administrative forum to express its concerns for the wellbeing of the student, the state complaint system is available to third parties who are neither parents of the student in question nor school districts (see 8 NYCRR 200.5[l]).
Additionally, while the IHO and the district focus on the parent's awareness of the due process complaint notice being filed under her name through a law firm retained by Learning Learners, this has no bearing on the central issue of standing in this case. Even if the parent were clearly aware, and there is no clear indication that she was in this case, as indicated above, this still would not allow her to assign the standing that she has to an entity that is not permitted to bring due process complaint notices (cf. Application of a Student with a Disability, Appeal No. 24-362).
Further, while I decline to exercise my discretion to consider the proffered additional evidence of a testimonial affidavit by the parent, even if it were considered, it would not change the analysis or ultimate conclusion.[12] The affidavit merely offers contradictory testimony to that of the testimony at the impartial hearing. The parent clearly testified at the impartial hearing that she did not hire a law firm for this matter, and this belated offer of directly contradictory testimony provides little in the way of convincing evidence that the parent retained counsel. In addition to the contents of the affidavit directly and pointedly contradicting the testimony at the impartial hearing, it also directly contradicts a question posed by counsel from the same firm, who asked if the parent, despite not hiring the law firm, authorized Learning Learners to retain the firm (Tr. p. 29). It is difficult to accept that an attorney from the same firm, a law firm which has ample experience pursuing claims through the impartial hearing process, in attempting to rehabilitate earlier testimony, would elicit testimony in a manner that seemed to confirm that it was Learning Learners and not the parent who hired the law firm and then later argue on appeal that the opposite was true.
Additionally, while the answer filed in this appeal implies that a retainer agreement was signed between the parent and firm, as well as asserts that the retainer provides "undisputed documentary evidence," tellingly no attempt was made to place a copy of this written retainer agreement before the IHO in the hearing record, nor was it offered as additional evidence on appeal (see Answer at p. 6). Thus, there is no reliable evidence in the hearing record, or in any proposed additional evidence, that would lead to a conclusion that the parent retained counsel to file the due process complaint for this matter rather than Learning Learners, contrary to the parent's clear initial testimony that she authorized Learning Learners to commence a proceeding on her behalf with a law firm retained by Learning Learners.
Finally, while it is alleged in the answer that the parent's testimony at the impartial hearing was due to the parent's primary language being Hebrew, and that she did not understand "the precise legal distinctions" of questions such as whether she "hired a law firm" (Answer at pp. 1-2), I find this contention to be without merit. There is nothing in the hearing record to indicate that the parent required a translator during the impartial hearing, or that counsel requested such translation services. In stark contrast, it was indicated at the beginning of the impartial hearing that neither party required an interpreter (Tr. p. 9). Additionally, both the agreement between Learning Learners and the parent, as well as the proposed additional evidence of the testimonial affidavit of the parent, which are both purportedly signed by the parent, are written in English with no indication that a translation was provided, or that a version written in Hebrew was provided. Therefore, I find no support in the hearing record for the contention that the parent's testimony stemmed from an unfamiliarity of the English language. Should this be a concern in the future, it would be prudent for counsel, a firm which has routinely appeared at impartial hearings in the district, to request an interpreter or translator for any clients who may benefit from such assistance.
VII. Conclusion
As Learning Learners is not permitted to file a due process complaint notice on behalf of the student, regardless of whether the parent was aware of such an arrangement, and regardless of whether the parent attempted to improperly "authorize" Learning Learners to retain a law firm and file a due process complaint notice on the student's behalf, I find that the IHO erred in finding that there was standing to pursue the claims in the due process complaint notice regarding the student's services for the 2025-26 school year. As such, the IHO decision will be vacated, and the due process complaint notice is dismissed in its entirety.
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO decision dated November 17, 2025 is vacated and the due process complaint notice is dismissed.
Footnotes
[1] A duplicate IESP was entered at the impartial hearing as parent's exhibit B. For the purposes of this proceeding, only the district exhibit will be cited.
[2] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[3] The student's eligibility for special education as a student with a learning disability is not in dispute (see 34 CFR 300.8[c][10]; 8 NYCRR 200.1[zz][6]).
[4] The IHO who issued this interim decision appears to be different than the IHO who ultimately presided over the impartial hearing (see Interim IHO Decision at p. 3; IHO Ex. I at pp. 1-4 [the signature on the interim decision appears to be the name of the IHO in earlier email correspondence, correspondence which indicated that a "merits IHO" would later preside over the proceedings]).
[5] Counsel is employed with the same law firm that purported to represent the parent during the impartial hearing.
[6] There is no merit whatsoever in counsel's claims regarding service, as State regulations provide in relevant part that, "[i]n the event that a parent of a student with a disability is named as a respondent in a request for review, personal service of the request for review shall be made by delivering a copy thereof to the parent" (8 NYCRR 279.4[c]). Here, the district effectuated service on the parent, the respondent in this matter, via email, after receiving consent from the parent to do so. It is not required by Part 279 that an attorney for a party be served with the request for review, regardless of any concerns regarding potential representation.
[7] Both parties submit proposed additional evidence. Generally, documentary evidence not presented at an impartial hearing is considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]). The district offers proposed SRO exhibits 1-4, with proposed SRO exhibits 1-3 being copies of correspondence between the district and the counsel regarding unrelated matters, potentially involving different parties. Proposed SRO exhibit 4 is a copy of the district's January 15, 2026 correspondence to the Office of State Review regarding a request to file an answer and alternative request for a finding that an answer would be timely. Regardless of whether proposed SRO exhibits 1-3 could have been offered at the time of the impartial hearing, correspondence pertaining to unrelated matters have no bearing in this current matter and are not necessary to reach a decision. Further, proposed SRO exhibit 4 is not necessary to render a decision. Thus, proposed SRO exhibits 1-4 will not be considered.
Additionally, included with the answer is a testimonial affidavit of the parent regarding the purported professional relationship between counsel and the parent, as well as assertions attempting to rehabilitate her testimony during the impartial hearing. This newly proffered testimony could have been offered at the time of the impartial hearing, including through redirect examination by counsel. Therefore, the affidavit will not be considered. However, as will be discussed more fully in this decision, even if this affidavit were considered, it would not change the analysis and ultimate conclusion.
[8] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[9] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[10] Education Law section 3212 indicates that a person in parental relationship to another "shall include his father or mother, by birth or adoption, his step-father or step-mother, his legally appointed guardian, or his custodian[, and that a] person shall be regarded as the custodian of another individual if he has assumed the charge and care of such individual because the parents or legally appointed guardian of such individual have died, are imprisoned, are mentally ill, or have been committed to an institution, or because, they have abandoned or deserted such individual or are living outside the state or their whereabouts are unknown, or have designated the person pursuant to title fifteen-A of article five of the general obligations law[] as a person in parental relation to the child" (see also NY Gen Oblig. Law § 5-1551).
[11] With respect to counsel's question that the parent indicated that she was not seeking services for the school year, the district has alleged on appeal that the parent testified that she was not seeking services for the 2025-26 school year during cross-examination, but that this is not reflected in the transcript due to "crosstalk" (Req. for Review ⁋ 2; see Tr. p. 28). Indeed, counsel for the district did ask if the parent was "asking for specific services for [her] child to be provided this year?," and immediately thereafter it is reflected in the transcript that "crosstalk" occurred (Tr. p. 28). The district asserts in the request for review that the subsequent question on redirect examination confirmed that the parent testified to not seeking services for the student for the 2025-26 school year (Req. for Review ⁋ 2; see Tr. pp. 29-30 ["And you said earlier in your testimony that you were not seeking services for the school year, but that you did hire an agency to provide the services for the school year"]).
[12] The additional evidence keys in on findings by the IHO regarding who retained the law firm that were not challenged in a cross-appeal in accordance with Part 279, thus as noted above I decline to accept it. However, some mention of it provides the entire context underlying the standing argument.