STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-266
Application of a STUDENT WITH A DISABILITY, by her 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:
Liz Vladeck, General Counsel, attorneys for respondent, by Sarah M. Pourhosseini, 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 the interim decision of an impartial hearing officer (IHO) which denied her request for respondent (the district) to fund independent educational evaluations (IEEs) of her daughter. 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
Due to the limited nature of the appeal and disposition thereof, a full recitation of the facts and procedural history is not necessary.
The parent initiated the instant administrative proceeding by due process complaint notice dated September 19, 2025 and subsequently filed an amended due process complaint notice on November 10, 2025.[1] In her amended due process complaint notice, the parent alleged that the district "failed to conduct accurate, comprehensive evaluations" that reflected the student's "actual functional, behavioral, academic, and social-emotional needs" (Amended Due Process Comp. Not. at pp. 1, 2). According to the parent, she repeatedly informed the district that the student's evaluations were outdated and inaccurate, and she alleged that the district failed to evaluate the student in all suspected areas of need (id. at p. 3). The parent further alleged that the district's "evaluation reports contain[ed] significant inaccuracies, material errors and omissions, leading to an inappropriate IEP" (id.). The parent sought, among other amended relief, an award of an IEE at public expense in all necessary areas, including a neuropsychological evaluation, psychoeducational evaluation, speech-language evaluation, and a functional behavioral assessment (FBA) (id. at p. 3). The parent requested the "[i]mmediate authorization and funding for comprehensive evaluations" and that "the IHO issue interim orders [awarding an IEE] pending the final adjudication" because the student's "needs require immediate attention and cannot wait until the conclusion of the hearing" (id. at p. 4).
Status conferences were held on November 10, 2025 and December 15, 2025 before an IHO with the Office of Administrative Trials and Hearings (OATH) (Tr. pp. 1-50). A hearing regarding the parent's amended request for an IEE was held on January 26, 2026, in which the district failed to appear (Jan. 26, 2026 Tr. pp. 1-102).[2] At the January 26, 2026 hearing, the parent presented fifty three exhibits and the IHO entered all of them into evidence (Jan. 26, 2026 Tr. pp. 13-26; Parent Exs. A-AAA).[3] Among the parent exhibits entered into evidence by the IHO was an email dated September 17, 2025 between the parent and district wherein the parent requested an IEE funded by the district and then later stated "I don't believe another evaluation is necessary" (Parent Ex. UU).
On February 20, 2026, the IHO issued an interim decision denying the parent's request for an IEE based on her finding that the parent withdrew her request for an IEE by her September 17, 2025 email when she stated "I don't believe another evaluation is necessary" (Interim IHO Decision at p. 5). The IHO further determined that interim relief was not warranted and that the IHO did not require additional information provided by an IEE in order to render a decision on the merits (id. at pp. 5-6).
IV. Appeal for State-Level Review
The parent appeals from the IHO's February 20, 2026 interim decision, alleging that the interim decision addressed procedural interpretations rather than the substantive question of whether the district's evaluation was sufficient.[4] The parent argues the IHO's interim decision did not reach the merits of the student's entitlement to IEEs under the IDEA and therefore should be reversed. The parent argues that the IHO's interim decision was based on findings of the parent's withdrawal of her request and lack of urgency for evaluations, and such findings were not supported by the hearing record. The parent claims that she consistently maintained her request for an IEE, that the hearing record contains no withdrawal by the parent of her request for an IEE, and that the district acknowledged that her request for an IEE remains pending. More specifically, according to the parent, on March 5, 2026, a preliminary hearing was held where the district acknowledged that she did not withdraw her request for an IEE and that her request would be considered as final relief at the April 13, 2026 impartial hearing.
Regarding the IHO's determination that there was no urgency for the requested IEE, the parent argues the IHO's finding conflicts with evidence of the student's documented behavioral concerns and the safety implementation plan implemented by the student's school. The parent alleges the district's evaluative information was incomplete and the evidence establishes the need for an IEE to inform appropriate educational programming. Additionally, the parent argues that the IDEA does not condition entitlement to an IEE on a showing of urgency. The parent also argues that the student's behavioral and safety risks demonstrate prejudice and a need for relief. The parent alleges that without an independent behavioral evaluation, the district lacks reliable data to determine the function of the student's behaviors and address safety and functional needs. The parent argues that a delay in evaluating the student risks continuation of behavioral incidents and a lack of appropriate supports and services, compromising the student's access to a safe educational environment.
Lastly, the parent argues that the IHO's interim decision failed to reach the merits of the parent's IEE request. The parent argues that the district failed to evaluate the student in known areas of concern and, therefore, the student is entitled to an IEE to remedy the informational gap. The parent argues that because the IHO did not address whether the district's evaluation was sufficient under the IDEA, she failed to apply the governing legal standard appropriately and her determinations must be reversed.
As relief, the parent requests a reversal of the IHO's February 20, 2026 interim decision and a declaration that the IHO's findings as to withdrawal and urgency are unsupported by the hearing record and constitute errors of law. The parent further seeks an order directing the district to fund an IEE at public expense consisting of: (1) a neuropsychological evaluation; (2) an FBA; (3) a psychoeducational evaluation; and (4) related assessments by independent evaluators of the parent's choosing, including but not limited to, the Manhattan Psychology Group.
In an answer, the district argues the parent's request for review must be dismissed because it is an impermissible appeal from an interim decision as it does not involve pendency.
The parent submits a reply to the district's answer, arguing that the IHO's denial of interim relief in the form of an IEE has an "immediate and ongoing impact" that "directly affects the [p]arent's ability to obtain evaluations that are necessary to inform the [s]tudent's educational program."[5] The parent argues that the district's request for dismissal should be denied, or in the alternative, that her "claims be preserved for review upon issuance of a final decision."
V. Discussion and Conclusion
At the outset, State regulations governing the practice of appeals from the decisions of IHOs related to matters concerning the provision of a free appropriate public education (FAPE) to a student with a disability limit appeals from an IHO's interim determination to those involving pendency (stay-put) disputes (8 NYCRR 279.10[d]; see Educ. Law § 4404[4]). The IHO issued an interim decision on February 20, 2026 addressing the parent's request for an IEE (Interim IHO Decision). The parent's papers filed with the Office of State Review demonstrate that although the impartial hearing process has commenced, the matter nevertheless has not yet concluded at the impartial hearing level and it is scheduled to continue on April 13, 2026 for the parties to present evidence and arguments about their respective cases, including the parent's request for an IEE (see Req. for Rev. at pp. 2-3).[6]
To the extent that the parent appeals from an interim IHO decision, the district is correct that State regulation does not allow for an interlocutory appeal on issues other than pendency disputes, the parent's appeal must be dismissed as premature (see Application of a Student with a Disability, Appeal No. 25-741; 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 such concerns 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.
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 failure to rule after the IHO renders a final determination. 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]).
THE APPEAL IS DISMISSED.
Footnotes
[1] At all relevant times, the parent appeared pro se.
[2] As the transcripts for the status conferences and the hearing were not consecutively paginated, for ease of reference, all citations to the January 26, 2026 hearing will be prefaced by the date followed by the page number.
[3] The district submitted a certified hearing record in this matter to the Office of State Review, including the due process complaint notice dated September 19, 2025, the amended due process complaint notice dated November 10, 2025, parent exhibits A-AAA, IHO exhibits I-II, and transcripts of the November 10, 2025, December 15, 2025, and January 26, 2026 proceedings that comprised the record as of the date of the IHO's interim decision.
[4] The parent submits a document titled "Petition for Review"; however, it is noted that the regulations governing practice before the Office of State Review were amended (see N.Y. Reg., Sept. 28, 2016, at pp. 37-38; N.Y. Reg., June 29, 2016, at pp. 49-52; N.Y. Reg., Jan. 27, 2016, at pp. 24-26) to, among other things, align with federal terminology and change the name of the pleading to initiate a review from "petition" to "request for review" (8 NYCRR 279.4[a]; see 34 CFR 300.515[b]). Accordingly the parent's petition for review will be referred to as a request for review.
[5] The parent submits additional evidence with her reply and requests that it be considered. 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]). As the additional evidence is not necessary considering the disposition of this appeal, it will not be considered.
[6] The parent may continue to request an IEE from the IHO and although the IHO denied the parent interim relief, the IHO noted the parent's request for an IEE may still be considered as part of the IHO's final decision in this matter (see Interim IHO Decision at pp. 5-6).