STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-051
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
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 an interim decision of an impartial hearing officer (IHO) in a due process proceeding challenging the appropriateness of respondent's (the district's) recommended educational program for her son for the 2023-24, 2024-25, and 2025-26 school years. The appeal must be dismissed.
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
Given the disposition of this matter on procedural grounds, a description of the facts is limited to the parent's appeal papers and documents submitted therewith.[1]
In a due process complaint notice dated July 7, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24, 2024-25, and 2025-26 school years (Parent Ex. A at pp. 1-20). In particular, the parent alleged that April 2023, June 2024, and June 2025 CSEs failed to recommend appropriate programming and services for the student, such as 12-month services, an appropriate frequency of speech-language therapy and parent counseling and training, or services delivered by a licensed behavior analyst (LBA) (id.). The parent also asserted that the district failed to implement the April 2023 and June 2024 IESPs during the 2023-24 and 2024-25 school years by not providing all of the student's speech-language therapy, occupational therapy (OT), or special education teacher support services (SETSS), or the mandated parent counseling and training and by refusing to pay for the provider the parent identified to deliver the student's SETSS (id.). The parent expressed concern that the same implementation issues would continue for the 2025-26 school year (id.). Further, the parent alleged that the district failed to evaluate the student and denied the parent's request for an independent educational evaluation (IEE) of the student at district expense (id.). The parent requested an interim order for IEEs at district expense (id.at pp. 20-21). The parent invoked pendency, requesting an order that the student's mandated services be funded by the district at private providers' prevailing rates during the pendency of the proceedings (id. at p. 21). For relief, the parent requested amendments to the student's IESP, development of an IEP for summer programming, funding for unilaterally-obtained services from an LBA, and compensatory education (id. at pp. 21-25).
The matter was assigned to an IHO with the Office of Administrative Trials and Hearings (OATH) (see Parent Exs. L; M). On August 18, 2025, the IHO held a prehearing conference with the parties and sent the parties a draft prehearing conference summary and order with instructions for the parent's advocate to input certain information (Parent Exs. N; O). In pertinent part, the draft summary and order indicated that the parent was to "send [the] Pendency document" and that the district was "reviewing" (Parent Ex. O at p. 1). On September 11, 2025, the IHO requested that the parent's advocate complete the information on the prehearing conference summary and order; provide a request for pendency, including the document upon which pendency was based; and update the IHO about the status of the parties agreement with respect to district funding of an IEE (Parent Ex. U at p. 1). The parent's advocate responded the same day, informing the IHO that she would work on providing the information requested for the prehearing conference summary and order; indicating, with respect to pendency, that an IESP was attached; and sharing that, although the district agreed to "the requested assessment for the IEE," it "never funded them so [the parent was] unable to get them" (Parent Ex. BB at pp. 1, 10).[2] On September 16, the IHO sent an email to the parent's advocate stating she did not believe that the advocate had sent the request for pendency including the document upon which pendency was based and sought clarification about the types of assessments sought for the IEE (Parent Ex. EE at p. 1). The advocate responded that she had sent "the IESP" but would resend it when she had access to her files and clarified the IEE request (id.).
On September 16, 2025, the district submitted a motion to dismiss the parent's claims pertaining to the 2023-24 school year based on the statute of limitations, to which the parent responded (Parent Exs. FF; GG). In an email dated September 22, 2025 the IHO granted the district's motion (Parent Ex. HH).[3]
In an interim decision dated November 5, 2025, the IHO elaborated on her decision with respect to the district's motion to dismiss and addressed the parent's request for interim IEEs at district expense (Parent Ex. XX). The IHO found that the parent's claims about the April 2023 IESP began to accrue as of the date of the CSE meeting given the parent's statements that she shared her concerns at the meeting and that, therefore, claims pertaining to the 2023-24 school year were not timely raised in the July 2025 due process complaint notice (id. at p. 5). The IHO did not find merit in the parent's arguments as to different accrual dates, including the parent's position that claims did not accrue until the district began to implement the IESP (id.at pp. 5-6).[4]
With respect to the IEE, the IHO found the parent was entitled to public funding of several of the independent evaluations sought but declined to award district funding for an independent OT evaluator or two independent functional behavioral assessments (FBAs) on an interim basis because, at that time, the record was "yet undeveloped . . . as to why the[] evaluations [we]re necessary" but could "be developed fully at hearing" (IHO Decision at pp. 7-8). Thus, the IHO ordered district funding of an IEE to include the following: a sensory processing diagnostic test, a speech-language evaluation, an assistive technology evaluation, and a neuropsychological evaluation, all by evaluators chosen by the parent (id. at p. 8).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in dismissing claims based on an incorrect statute of limitations accrual date, improperly omitted requested FBA and OT evaluations from the interim decision ordering IEEs at district expense, and failed to issue a pendency (stay‑put) ruling despite multiple written and oral requests, resulting in service deprivation during litigation. In addition to seeking favorable rulings related to the statute of limitations, IEEs, and pendency, the parent also requests that the matter be remanded to a new IHO.[5]
V. Discussion
At the outset, the parent's papers filed with the Office of State Review demonstrate that, although the impartial hearing process has commenced with the holding of a preliminary conference and some interim relief has been addressed, the matter nevertheless has not yet concluded at the impartial hearing level. State regulations governing appeals before the Office of State Review limit appeals from an IHO's interim determinations to those involving pendency (stay-put) disputes (8 NYCRR 279.10[d]; see Educ. Law § 4404[4]). Therefore, to the extent that the parent appeals from the IHO's interim decision regarding the district's motion to dismiss or the parent's request for interim IEEs or otherwise challenged the IHO's manner of conducting the impartial hearing (see Parent Ex. XX), State regulation does not allow for an interlocutory appeal on these issues, and the parent's appeal must be dismissed as premature (see Application of a Student with a Disability, Appeal No. 24-475; Application of a Student with a Disability, Appeal No. 24-385; Application of a Student with a Disability, Appeal No. 22-120; Application of a Student with a Disability, Appeal No. 18-075). In short, despite the parent's stated concerns, no appeal of the issues related to the statute of limitations, IEEs, or the manner in which the IHO conducted the preliminary proceedings is permissible in this matter until the parties and the IHO have completed the impartial hearing process and the IHO has issued a final decision in the case.
With respect to pendency, although a parent may appeal from an IHO's interim decision on pendency (8 NYCRR 279.10[d]; see Educ. Law § 4404[4]), here the IHO has not yet ruled on the issue. State regulation contemplates that a party may interpose an appeal from an IHO's "failure[] to rule" on an issue (8 NYCRR 279.8[c][2]); however, there is no indication that the IHO refused to rule on pendency in this matter. It does appear that there was some confusion regarding whether or not the IHO received the parent's position on pendency including the IESP that the parent alleged formed the basis of pendency, but the communications also indicate that the IHO was attentive to the issue and had an intention to rule on pendency once she had the information needed (see Parent Exs. O at p. 1; U at p. 1; BB at p. 1; EE at p. 1). While the parent no doubt would have preferred that the IHO reach pendency sooner in the process, what the parent may perceive as unnecessary delay by the IHO does not equate with a refusal to rule in this instance, particularly given that the impartial hearing is still pending.[6]
While consideration of the parent's allegations on appeal is premature at this juncture, it does not prevent later review of the IHO's decisions or failures to rule after the IHO renders an interim decision on pendency and/or a final determination on the parent's claims. State regulation provides that a "party may seek review of any interim ruling, decision, or failure or refusal to decide an issue" in an appeal from an IHO's final determination (8 NYCRR 279.10[d]). Thus, if necessary, the parent may appeal allegations regarding pendency after the IHO rules on the issue and regarding the statute of limitations, district funding of IEEs, and the manner in which the IHO conducted the hearing after the IHO closes the hearing record and issues a final determination on the issues presented in the parent's due process complaint notice.
VI. Conclusion
Having found that the parent's appeal is an impermissible interlocutory appeal, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] The district did not file a hearing record in this matter. It may be that the district was not properly served with a notice of intention to seek review to alert it of its obligation to file the record (see 8 NYCRR 279.2; 279.4[b]; 279.9[d]); however, given the procedural posture, the matter may be resolved on the parent's papers. For purposes of this decision, the documents submitted by the parent with her appeal are cited as marked (i.e., Parent Exs. A-YY).
[2] The parent's advocate provided the information requested for the prehearing conference summary and order on September 14, 2025 (Parent Exs. CC; DD).
[3] After the IHO's ruling, the parent's advocate re-submitted the parent's response to the district's motion to dismiss to comply with the IHO's policy with regard to the length of motion papers (Parent Exs. KK; LL).
[4] The IHO noted that, although her individual rules of practice required motion responses within three days and motion papers of no more than five pages in length, the parent's response to the district's motion was 18 pages long, filed six days after the district's motion, and did not include supporting evidence (Parent Ex. XX at p. 5). Nevertheless, the IHO addressed the parent's arguments set forth in the response to the district's motion (id. at pp. 5-6).
[5] The district did not answer the parent's appeal or otherwise appear in this matter. The affidavit of personal service accompanying the parent's request for review appears to indicate that the parent properly served her appeal documents at the office of New York City Law Department (Aff. of Personal Serv.). I note that the parent went to great lengths to document her difficulties in serving the appeal in the prescribed manner, including receiving conflicting and erroneous information from district employees regarding the personal service of appeal papers pursuant to Part 279. I have seen some similar complaints from other parents in other proceedings. While unnecessary to resolve the issue in this matter, I strongly encourage the district to consider making information about how parents may effectuate in person service upon the district pursuant to Part 279 more accessible in the future and the problem appears to be growing in frequency due to parties' continued efforts to invent shortcuts that deviate from the practice regulations. In person service is what is envisioned under Part 279 and parents can and should expect a school district to provide a straightforward, unambiguous avenue for achieving that ministerial task of serving papers without undue barriers.
[6] Considering the focus on maintaining the status quo during the proceeding and the time-sensitive nature of a pendency determination, an IHO may and generally should promptly resolve a pendency dispute (see Murphy v. Arlington Central Sch. Dist., 297 F. 3d 195, 199-200 [2d Cir. 2002]; see also 8 NYCRR 276.1[c]; "Questions Relating to Impartial Hearing Procedures Pursuant to Sections 200.1, 200.5, and 200.16 of the Regulations of the Commissioner of Education, as Amended Effective February 1, 2014," at p. 7, Office of Special Educ. [Revised Sept. 2016] [noting that, if there is a dispute regarding a student's pendency placement, it is incumbent upon the IHO "to render a written decision regarding pendency as soon as possible and prior to determining any other issue"], available athttps://www.nysed.gov/sites/default/files/programs/special-education/qa-procedures-impartial-hearing-procedures-sep-2016.pdf). However, there is no law or regulation setting an explicit timeframe within which an IHO must issue a determination on pendency and, at this juncture, I can perceive no abuse of discretion by the IHO because a pendency issue may not yet be fully resolved.