STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-421
Application of a STUDENT WITH A DISABILITY, by his parents, 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: Gottlieb & Wang LLP, attorneys for petitioners, by Marc Gottlieb, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Thomas W. MacLeod, 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. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request to be reimbursed for their son's tuition at Achievement Unlocked (AU) for the 2023-24 school year. 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
The evidence in the hearing record relating to the student's educational history is sparse. The description of the facts is limited to the procedural history including the allegations in the parents' due process complaint notices and the amended due process complaint notice. Review of affidavit testimony in the hearing record indicated that the student has received the diagnosis of autism spectrum disorder and began attending AU in September 2021 (Parent Exs. L at p. 1; M at p. 1).[1] On March 30, 2023, the student's mother signed an agreement with AU for the enrollment of the student at "Allied Achievement, LLC" to attend fourth grade for the 2023-24 school year (Parent Ex. F at pp. 1-4).[2]
A. Due Process Complaint Notices and Subsequent Events
On August 16, 2023, the parents initially filed a due process complaint notice dated August 15, 2023 (IHO Case No. 252650), alleging that the district had not developed an IEP for the student for the 2023-24 school year, and that the parents had no choice but to reenroll the student at AU for the 2023-24 school year (Parent Ex. B at pp. 1, 3). The parents invoked the student's right to pendency based on an unappealed IHO decision in IHO Case Number 230150 (id. at p. 1).[3] As relief, the parents sought tuition reimbursement and prospective funding, special transportation, related services, evaluations and pendency (id. at p. 2).
On August 28, 2023, the district countersigned a pendency implementation form, which indicated that the student's pendency was based on an unappealed May 5, 2023 IHO decision (IHO Case No. 230150), which consisted of 10-month services at AU, and was to be implemented as part of a proceeding commenced by a due process complaint notice dated August 24, 2023 (IHO Case No. 252650) (Parent Ex. C).
On February 14, 2024, the parents filed an amended due process complaint notice (IHO Case No. 252650) in which they reasserted that the district had not developed an IEP for the student for the 2023-24 school year, alleged that the district did not properly evaluate the student in all areas of suspected disability, and reserved the right to challenge denials of FAPE of which the district knew or should have known that the parents had not discovered (Parent Ex. A at p. 1). The parents reasserted their request for relief and also requested compensatory speech-language therapy (id. at p. 2).
According to a prior written notice dated March 19, 2024, a CSE convened on March 7, 2024, and found the student eligible for special education as a student with autism (Dist. Due Proc. Response at p. 3). The prior written notice reflected that the March 2024 CSE recommended that the student attend a 12:1+1 special class in a non-specialized school and receive two 30-minute sessions per week of counseling in a group of two, two 30-minute sessions per week of occupational therapy (OT) in a group of two, two 30-minute sessions per week of speech-language therapy in a group of three, and that the parents receive one 60-minute session per month of individual parent counseling and training (id. at pp. 3-4).
According to the parents, they withdrew their amended due process complaint notice in IHO Case Number 252650 on April 29, 2024 (see Oct. 22, 2025 Amended Due Proc. Compl. Not. at p. 1).
On May 1, 2024, the parents filed another due process complaint notice, which was dated April 30, 2024 (IHO Case No. 272720) (Parent Ex. D at pp. 1, 3). The parents again alleged that the district had not developed an IEP for the student for the 2023-24 school year, that the district had not properly evaluated the student in all areas of suspected disability, and the parents further reserved the right to challenge denials of FAPE of which the district knew or should have known that the parents had not discovered (id. at pp. 1-2). The parents also asserted that they had no choice but to reenroll the student at AU for the 2023-24 school year (id. at p. 2). The parents invoked the student's right to pendency based on an unappealed May 5, 2023 IHO's decision in IHO Case Number 230150 (id. at p. 1; see Parent Ex. C). As relief, the parents sought tuition reimbursement and prospective funding, special transportation, related services, evaluations and pendency (Parent Ex. D at p. 2). On July 8, 2024, the parents withdrew their May 1, 2024 due process complaint notice (Parent Ex. J at pp. 1, 5).
On September 9, 2025, the parents filed another due process complaint notice (IHO Case No. 301268) commencing this matter (see Sept. 9, 2025 Due Proc. Compl. Not. at pp. 1, 3). The parents alleged that the district stopped funding the student's pendency services at AU on April 29, 2024, and had failed to provide funding for the student's pendency for the remainder of the 2023-24 school year (id. at pp. 1-2).
In an amended due process complaint notice in this matter (IHO Case No. 301268), dated October 22, 2025, the parents alleged that the district failed to provide the student a free appropriate public education (FAPE) from April 29, 2024 through June 26, 2024 (Oct. 22, 2025 Amended Due Proc. Compl. Not. at pp. 1-2). The parents asserted that the district had violated its pendency obligations and that the parents sought tuition funding for the cost of the student's attendance at AU from April 30, 2024 through June 26, 2024 (id. at p. 2). As additional relief, the parents requested tuition reimbursement and/or prospective funding, pendency, an award and implementation of specialized transportation, reimbursement for private transportation costs, related services, and evaluations (id.).
B. Impartial Hearing Officer Decision
The parties convened for prehearing conferences on October 14, 2025 and November 25, 2025, before an IHO with the Office of Administrative Trials and Hearings (OATH) (Oct. 14, 2025 Tr. pp. 1-20; Nov. 25, 2025 Tr. pp. 21-39).[4], [5] The parties reconvened for an impartial hearing on February 2, 2026 (Feb. 2, 2026 Tr. pp. 1-19).
On February 18, 2026, the district countersigned a pendency implementation form, which indicated that the student's pendency was based on an unappealed February 19, 2025 IHO decision (IHO Case No. 284042), which consisted of 10-month services at AU, and was to be implemented as of the due process complaint notice dated September 9, 2025 (IHO Case No. 301268) in this matter (Feb. 18, 2026 Pendency Implementation Form).
In a decision dated March 4, 2026, the IHO found that the parents' request for pendency funding for the remainder of the 2023-24 school year was not appropriate, and further that the parents' claims were barred by the IDEA's two year statute of limitations (IHO Decision at p. 4).[6]
Regarding pendency, the IHO held that she lacked the "authority to issue pendency from a separate proceeding pending before a different IHO" (IHO Decision at p. 6). The IHO determined that the student was receiving pendency funding based on an agreement between the parties, which had been memorialized in the August 28, 2023 pendency implementation form (IHO Case No. 252650) (id. at p. 8; see Parent Ex. C). The IHO also noted that the parents withdrew IHO Case Number 252650 on April 29, 2024, filed a new due process complaint notice on May 1, 2024 (IHO Case No. 272720), and "did not seek pendency implementation" (IHO Decision at p. 8).[7] The IHO further noted that the parents were not required to seek implementation of pendency through a due process complaint notice; however, she found that the district's "failure to reinstate that [pendency] agreement upon the withdrawal of [IHO Case Number] 252650 and [the] filing of [IHO Case Number] 272720 [wa]s a matter outside of th[e] IHO's hands" (id.). The IHO also stated that she could not and would not "retroactively issue pendency in [a] subsequently filed matter" (id.).
The IHO further discussed her rationale finding that "implementing pendency dating back to 2024 [wa]s a form of redress akin to damages" and that the parents' argument "incorrectly equate[d] a failure to fund/implement pendency for the entire school year with a FAPE violation" (IHO Decision at pp. 8-9). The IHO further found that she could not review the matter for a potential award of reimbursement of compensatory education (id. at p. 9). As a result, the IHO denied the parents' request for pendency due to a lack of authority, and without prejudice to enforcement or compensatory remedies in the proper forum (id.).
IV. Appeal for State-Level Review
The parents appeal and assert that the IHO erroneously determined that adjudicating the district's undisputed violation of pendency exceeded her authority. The parents further allege that the IHO erred in finding that awarding compensatory education for the district's failure to implement pendency exceeded her authority. As relief, the parents request an award of compensatory pendency services for the time period of May 1, 2024 through June 30, 2024.
In an answer, the district asserts that the parents' request for review does not comply with the practice requirements as it was not properly verified. Therefore, the district contends that the request for review was invalid and untimely. Regarding the merits of the appeal, the district argues that the student was not entitled to pendency and all claims were time barred.
In a reply, the parents argue that the district's answer does not controvert "the numerous grounds meriting reversal" as the district did not dispute that it failed to implement pendency under the prior due process complaint notices. The parents contend that the request for review complies with the practice regulations as the parent was permitted to make an affirmation of the verification.
V. Discussion
The parents have 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]).[8] 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 request for review included an affirmation of verification by the student's mother, that was executed on April 11, 2025, two days prior to the date the request for review was signed, April 13, 2025 (see Req. for Rev. at p. 6; Parent Verification of Req. for Rev.). The student's mother affirmed that she "read the annexed request for review and associated papers"' however, as the request for review as dated after the verification, it could not have been annexed in that form to the verification signed by the parent. More specifically, the parent could not have verified the contents of a document that was not yet completed and, therefore, the verification, on its face, was not valid under the requirements of the regulations (see 8 NYCRR 279.7[b][1]). 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 parents' 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 two days prior to the day that the request for review was completed. The parents only assert that affirmations of verifications are allowed. To allow a verification to predate pleadings, would permit parties to convert deadlines into negotiable suggestions and transform the verification requirements in State regulations into a malleable formality.[9]
As the parents' initiating pleading in this matter is defective, the request for review is rejected.
VI. Conclusion
In summary, the appeal is dismissed due to the parents' 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.
Dated: May 13, 2026
Steven Krolak
STATE REVIEW OFFICER
Footnotes
[1] AU has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[2] According to an affidavit sworn to by the bookkeeper of AU, the student attended "Allied Achievement" from September 7, 2023 through June 26, 2024 (Parent Ex. G). The hearing record does not explain why the contract and affidavit indicated the student was enrolled at a school named "Allied Achievement, LLC" and, for ease of reference, the school the student attended will be referred to as AU for the remainder of the decision.
[3] The date of the unappealed IHO decision was not referenced in the parents' due process complaint notices ((Parent Exs. B at p. 1, D at p. 1). Review of the hearing record reflects that the unappealed IHO decision in IHO Case Number 230150 was dated May 5, 2023 (Parent Ex. C).
[4] The transcripts from the prehearing conferences are not consecutively paginated with the transcript for the impartial hearing. For the purpose of clarity, all transcript citations in this decision will be referenced by date and corresponding page number.
[5] The district filed a motion to dismiss dated October 14, 2025, and the parents filed a motion in opposition dated October 29, 2025 (see IHO Exs. I; II).
[6] In her introduction to her decision, the IHO incorrectly stated that parents alleged that the district had failed to develop an IEP for the student for the 2023-24 school year, that the district did not properly evaluate the student in all areas of suspected disability, that the district withheld information from the parents, and that the parents requested compensatory speech-language therapy in their October 22, 2025, amended due process complaint notice (IHO Decision at p. 3). Although the parents had asserted these claims in prior due process complaint notices that were subsequently withdrawn, as detailed above, these claims were not reasserted in the October 22, 2025 amended due process complaint notice.
[7] Contrary to the IHO's finding, the parents invoked the student's right to pendency based on an unappealed May 5, 2023 IHO Decision in IHO Case Number 230150 in their May 1, 2024 due process complaint notice (IHO Case No. 272720) (Parent Ex. D at p. 2; see Parent Ex. C).
[8] 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]).
[9] Notably, the parents' attorney's law firm has filed improperly verified pleadings in the past and has been granted leave to refile. In addition, the parents' attorney's law firm was cautioned that it was unlikely that leave to amend a pleading in future matters would be granted in the event the pleading was noncompliant with State regulations for the same reasons.