OSR

Office of State Review

Parent Guide to Appealing the Decision of an Impartial Hearing Officer

SECTION I. Parent as Petitioner

  1. How to Give Notice of an Appeal
  2. Prepare the Appeal
  3. Serve and File the Request for Review
  4. District's Response
  5. Parent's Answer to Cross-Appeal
  6. Petitioner's Reply to Answer

A. How to Give Notice of an Appeal

1. A Notice of Intention to Seek Review (Form A PDFAdobe Reader File/ Form A MS WORDWord Document)

To initiate your appeal, you must prepare a Notice of Intention to Seek Review and serve it to the Board of Education of the school district no later than 25 calendar days after the date of the decision of the impartial hearing officer you are requesting be reviewed.  It is important that you provide notice to the district of your intent to seek review, so the District can send the hearing record to the Office of State Review.  If you do not send a notice of intention to the district, or send it late, there may be delays in processing your case.

2. A Case Information Statement (Form A PDF Adobe Reader File/ Form A MS WORDWord Document)

You must complete a Case Information Statement along with your Notice of Intention to Seek Review.  You may combine the Case Information Statement with the Notice of Intention to Seek Review into a single document.  The Case Information Statement identifies the type of issues that you plan to ask a State Review Officer to review.  The Case Information Statement is not the Request for Review itself, and you are not limited to the issues identified on the Case Information Statement and can raise additional issues in your Request for Review.  However, any issue not identified in your Request for Review will be considered abandoned and will not be addressed by a State Review Officer.

3. How to Serve the Notice of Intention to Seek Review

After the Notice of Intention to Seek Review and Case Information Statements are prepared, copies of both forms must be hand-delivered to the school district.  This service must be to the school district clerk, any trustee or member of the Board of Education, the superintendent of schools, or a person in the superintendent's office who has been designated by the Board to accept service.

4. Parent as Respondent and Notice of Intention to Cross-Appeal (Form C PDF Adobe Reader File/ Form C MS WORD Word Document)

If you have been served by the district with a Notice of Intention to Seek Review, and you would also like a portion of the impartial hearing officer's decision to be changed or reversed by the State Review Officer, you will most likely be the Respondent in the case and must prepare a Notice of Intention to Cross-Appeal and Case Information Statement.  If you are the Respondent, then you should examine Section II and Section III of this parent guide.  The Notice of Intention to Cross-Appeal must be served on the school district in the same manner as described above in paragraph number 3 above, no later than 30 calendar days after the date of the impartial hearing officer's decision.

If the school district has not served you with the Notice of Intention to Seek Review and you wish to challenge the IHO's decision, continue with the instructions below.

5. Failure to Serve a Notice of Intention to Seek Review /Case Information Statement

If you fail to Serve a Notice of Intention to Seek Review/Case Information Statement upon the school district, it does not automatically bar your appeal.  You should still proceed with preparing and serving your Request for Review within the time limits and the State Review Officer will decide whether to allow your Request for Review to proceed in light of the particular circumstances in the case.

B. How to Prepare the Appeal

1. Timeline 

The Notice of Request for Review and the Request for Review must be served on the Board of Education of the school district the same way the Notice of Intention to Seek Review was served, no later than 40 calendar days after the date of the decision of the impartial hearing office you are requesting be reviewed.

2. A Notice of Request for Review (Form B PDF Adobe Reader File/ Form B MS WORD Word Document)

A copy of this notice should be attached as a cover page to your Request for Review. The heading, or caption in this document should record the same parent and school district names in the upper left-hand corner as those that were listed on the Notice of Intention to Seek Review.  The body of the Notice of Request for Review must contain the words exactly as they appear on Form B, and must be signed by you at the bottom.

3. Request for Review

The Request for Review is the document in which you state your reasons that you are seeking review of the Impartial Hearing Officer's decision.  There is no standard form for the Request for Review, but you may use the sample Request for Review as a guide (Sample Request for Review Forthcoming).  The Request for Review should be prepared in accordance with the following directions:

    a. The Request for Review should be typewritten using standard double-spacing, in 12-point Times New Roman font, on standard 8 1/2 by 11 inch white paper, and no longer than 10 pages.  Margins should be no smaller than 1 inch.

Please Note: To facilitate processing, the Office of State Review encourages parties to use regular staples only to fasten pages together and discourages parties from using binding systems for papers submitted to the Office of State Review (i.e. comb binding, velobinding, tape binding, etc.)

b. A caption or heading should appear in the upper left hand corner listing the same parental and school district parties that appear on the Notice of Intention to Seek Review and the Notice of Request for Review. 

c. Begin the Request for Review by identifying yourself as the parent or person in parental relationship to the child.

d. State the child's age, and the name of the school, if any, which the child is attending.

e. Make a clear and concise statement of the issues/IHO rulings that you would like the State Review Officer to review and the reasons that the IHO's decision should be reversed or changed, with each issue/IHO ruling numbered and set forth separately.  Any issue/IHO ruling that you wish to challenge but do not identify in your Request for Review will not be addressed by the State Review Officer and it will be assumed that you are abandoning it.

f. Explain to the State Review Officer what part(s) of the hearing officer's decision you disagree with, and why you disagree with the hearing officer's decision.  Also explain the hearing officer's failure to or refusal to rule on/decide an issue and if you would like the State Review Officer to review that issue.  When possible, you should refer to the evidence in the record, such as the page numbers from the written transcript of the hearing or written documents which were presented at the hearing, to support your argument.  For example, "Tr. pp. 365-70" means that the State Review Officer should focus on or be convinced of your point that you are writing about by looking at pages 365 through 370 of the hearing transcript, and  "Parent Ex. Q at p. 8" means that the State Review Officer should focus on or be convinced by the information on page 8 of Parent's documentary exhibit Q.

g. If you object to the way in which the IHO conducted the hearing, you should state your objection, and if possible, you should refer to any pages of the written record of the hearing which relate to your objection.

h. Indicate what relief or remedy you are seeking by bringing the appeal.  At the end of the Request for Review, you should explain to the State Review Officer what you would like to see happen.  You may ask the State Review Officer to reverse or change the IHO's decision and, for example:

    • order that your child is eligible for special education;
     
    • order that a different evaluation/assessment of your child be conducted;
     
    • order your child's type of classroom setting or other special service(s) be changed (or not be changed);
     
    • order that extra special education services be provided by the school district to your child to make up for a lack of services that the district should have provided to your child in the past; and/or
     
    • order that you be reimbursed for private school tuition because you obtained the specialized schooling/programming that your child needed after the district failed to provide your child with appropriate special education.
     

The items above are several examples of relief that parents have sought from State Review Officers and is not the only relief you may request. You must decide what you believe the school district should be ordered to do to help your child and explain what you would like the State Review Officer to order.

i. You are not required to refer to portions of Federal or State laws or regulations to support your argument that the decision of the hearing officer should be overturned or amended; however, if you wish you may do so in the Request for Review. 

j. You may also submit a separate document detailing your legal arguments.  The separate document is a "Memorandum of Law."  Your Memorandum of Law in support of your Request for Review should be typewritten, standard double-spacing, in 12-point Times New Roman font, on standard 8 1/2 by 11 inch white paper, and no longer than 30 pages.  Margins should be no smaller than 1 inch.

4. Affidavit of Verification (Form D PDF Adobe Reader File/ Form D MS WORD Word Document)

In this verification form you, as the petitioner, make an oath in front of any person authorized to administer oaths in New York State (such as a Notary Public or Commissioner of Deeds) that the statements in the Request for Review are true to the best of your knowledge.  You will usually find a Notary Public or a Commissioner of Deeds in a government office, a bank, or by searching the internet for a notary in your area.

 

C. Serving and Filing the Request for Review

After you have prepared the Notice of Request for Review, Request for Review, and Affidavit of Verification, you should make two copies of the originals. You should keep one copy for your records. The other copy of the Notice of Request for Review, Request for Review, and Affidavit of Verification must be hand-delivered to the school district.  This hand-delivery is a form of "service."  This service must be made upon the school district clerk, any trustee or member of the Board of Education, the superintendent of schools, or a person in the superintendent's office who has been designated by the Board to accept service.

After service (by hand-delivery) the Notice of Request for Review, the Request for Review and the Affidavit of Verification on the school district as described above, you must also submitt an Affidavit of Personal Service that is signed by the person who served the papers.

1. Affidavit or Proof of Personal Service (Form E PDF Adobe Reader File/ Form E MS WORD Word Document)

An Affidavit of Service is a written form that describes how, when and to whom the appeal papers were served.  The Affidavit of Service must include:

  • What papers were delivered
  • Who delivered the papers
  • Where the papers were delivered
  • The date and time the papers were delivered
  • How the papers were delivered
  • If given to someone, a description of the person and
  • If papers were mailed, when and how they were mailed.

The Affidavit of Service must be signed by the person who served the school district with the documents in front of a notary public.  You should make a copy of the Affidavit of Service for your records.

2. Filing with the Office of State Review

Within 2 calendar days of serving the Request for Review upon the school district, the original Notice of Intention to Seek Review and Case Information Statement, Notice of Request for Review, Request for Review, Affidavit of Verification and Affidavit of Service must be mailed to the State Review Officer at the following address:

Office of State Review

New York State Education Department

80 Wolf Road, Suite 203

Albany, NY 12205

3. Improper Service/Filing of a Request for Review

If you do not serve your Request for Review upon the school district within 40 calendar days of the date of the impartial hearing officer's decision, your appeal may be dismissed.  To avoid this outcome you must clearly state good reason(s) within your Request for Review explaining why you were unable serve it within the 40-day time limit (i.e. lengthy or unplanned hospitalization, catastrophic weather conditions/power loss).    

Please note that the State Review Officer may, but is not required to excuse a party's failure to timely serve a Request for Review if good cause is shown within the Request for Review. Good cause generally includes situations that arise that are beyond your control, and generally does not include business/personal travel, lack of legal representation, or work/regular family obligations.  Lengthy delays in receiving the IHO's decision may or may not be good cause depending on the circumstances and you should make your best efforts to comply with the 40-day time limit for serving the Request for Review even if your receipt of the IHO's decision was delayed.

D. The District's Response (Answer or Answer with Cross Appeal)

The district may respond to your Request for Review in one of two ways, either with 1. an "Answer" or 2. an "Answer with Cross-Appeal."

  • An Answer is the district's response to the issues you have raised and an Answer explains why the district thinks the impartial hearing officer's decision was correct. 
  • An Answer with Cross-Appeal is similar to an Answer, but it also include the district's argument that some portion(s) of the impartial hearing officer's decision are incorrect as well.  If the district serves you with an Answer that includes a Cross-Appeal and thereby challenges a portion of the IHO's decision, then you will have the right to respond to the district's Cross-Appeal with an Answer of your own.

E.  Parent's Answer to Cross-Appeal

1. How to Prepare and Serve an Answer to a Cross-Appeal (Sample Forthcoming)

Within 5 business days after receiving an Answer with Cross-Appeal, you may serve an Answer to the Cross-Appeal.  If the Answer with Cross-Appeal was served on you by mail, 3 calendar days are added to the end of this period.

a. If you disagree with the district's Cross-Appeal, you will need to explain in your answer why the impartial hearing officer was correct in deciding in your favor the issues the school district is now appealing.  If possible, you should refer to the evidence in the record, such as the page numbers from the written transcript of the hearing or written documents which were presented at the hearing, to support your argument. For example, "Tr. pp. 365-70" means that the State Review Officer should focus on or be convinced of your point that you are writing about by looking at pages 365 through 370 of the hearing transcript, and "Parent Ex. Q at p. 8" means that the State Review Officer should focus on or be convinced by the information on page 8 of Parent's documentary exhibit Q.

b. The Answer should be typewritten using standard double-spacing, in 12-point Times New Roman font, on standard 8 1/2 by 11 inch white paper, and no longer than 10 pages.  Margins should be no smaller than 1 inch.

c. While you are not required to refer to portions of Federal or State laws or regulations to support your argument that the decision of the hearing officer should be upheld, you may do so in the Answer.  You may also submit a separate document detailing your legal arguments.  The separate document is a Memorandum of Law.  Your Memorandum of Law in support of your Answer should be typewritten, standard double-spacing, in 12-point Times New Roman font, on standard 8 1/2 by 11 inch white paper, and no longer than 10 pages.  Margins should be no smaller than 1 inch.

d. Affidavit of Verification (Form Forthcoming) In this form you as the petitioner make an oath in front of any person authorized to administer oaths in New York State (such as a Notary Public or Commissioner of Deeds) that the statements in the Request for Review are true to the best of your knowledge. 

e. You may serve the Answer to the Cross-Appeal along with the Affidavit of Verification by personal delivery, mail, or overnight delivery service to the school district or the school district's attorney. You should make a copy of these documents for your records.

f. Affidavit or Proof of Personal Service or Service by Mail (Form Forthcoming) The Affidavit of Personal Services must be signed in the presence of a Notary Public or a Commissioner of Deeds by the person who delivered the documents to the Board of Education.  You should make a copy and keep for your records.

g. Within 2 calendar days of serving the Answer to the Cross-Appeal upon the school district, the original Answer to the Cross-Appeal, Affidavit of Verification and Affidavit of Service must be mailed to:

Office of State Review

New York State Education Department

80 Wolf Road, Suite 203

Albany, NY 12205

F. How to Prepare, Serve and File a Reply to an Answer (Sample forthcoming)

  1. The Reply is your response to any claims the school district raised in its Answer that you did not already address in your Request for Review, to any affirmative defenses raised in the Answer, or to any additional documentary evidence served with the Answer.
  1. You may serve the school district with a Reply within 3 calendar days after you receive personal service of the Answer (or within 6 calendar days if the Answer was mailed to you).
  1. Affirmative Defenses are facts raised by the school district which prevent you from winning your appeal for reasons other than the merits of your claim.  Examples of affirmative defenses include:
  • That your request for review was not served on time or was not properly served on the district
 
  • That the claims in your request for review were already resolved in an earlier impartial hearing or in a settlement agreement with the district
  • That you are not the parent of the student or do not live in the district
  • That you did not request or have an impartial hearing before seeking review by a State Review Officer
 
  • That your claims are not the type of dispute that can be resolved by a State Review Officer
  1. The Reply should be typewritten using standard double-spacing, in 12-point Times New Roman font, on standard 8 1/2 by 11 inch white paper, and no longer than 10 pages.  Margins should be no smaller than 1 inch.
  1. You may serve a Reply by personal delivery, mail, or overnight delivery service to the school district's attorney.

           

  1. The Reply must be filed, together with an Affidavit of Service within 2 calendar days after the service of the Reply on the school district. You may file the Reply with:

Office of State Review

New York State Education Department

80 Wolf Road, Suite 203

Albany, NY 12205

If you serve the reply by mail or overnight delivery service, you may compete the Affidavit of Service using Form F (Form F PDF Adobe Reader File / Form F MSWORD Word Document).

However, if you serve the Reply by personal service (i.e. hand delivery) then you may complete the Affidavit of Personal Service using Form E (Form E PDF Adobe Reader File/ Form E MS WORD Word Document)

Last Updated: January 6, 2017