Parent Guide to Responding to A School District's Appeal of the Decision of an Impartial Hearing Officer
SECTION II. Parent as Respondent
Serving and Filing the Answer Seeking an Extension of Time
If the school district has already served you with a Notice of Intention to Seek Review and/or served you with a Request for Review, you are the Respondent. Respondents may, but do not have to, respond to the Request for Review. If you won at the impartial hearing, or you won on some matters but not others, you can respond to the district's Request for Review in one of two ways. One way to respond is to file a response (Answer) that indicates you accept the IHO's decision, and identifies the reasons that you believe the district's request should be denied and the IHO's decision should be upheld.
However, you may not agree with all of the IHO's decision. If you have won on some issues, but disagree with other portions of the IHO's decision, the second way to respond is to file an "Answer with Cross-Appeal". If this is the case, you may cross-appeal those parts of the IHO's decision with which you disagree, but ask the State Review Officer to uphold the portions of the IHO's decision that you agree with. In most instances, a State Review Officer can only address an issues that at least one of the parties has either appealed or cross-appealed.
The instructions for preparing an Answer are discussed in detail below. If you wish to file an Answer and Cross-Appeal, please see follow the instructions in Section III of this Parent Guide.
A school district's Request for Review is usually served on a parent by hand-delivery. After the school district serves you with the Request for Review, you may prepare an Answer. You must serve the school district with the Answer within 5 business days after the District serves you with the Request for Review. You may request an extension of this deadline from the State Review Officer.
After reading the Request for Review, decide whether you disagree with any of the District's statements in the Request for Review. In your Answer, you should respond to each issue identified by the District in the Request for Review. If the IHO did not rule on issues that were written in the due process complaint notice that you want a State Review Officer to review, identify them in your Answer.
a. 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.
b. A caption or heading should appear in the upper left hand corner of the first page of the Answer, listing the same parental and school district parties that appear on the school district's Notice of Intention to Seek Review and its Notice of Request for Review.
c. Begin the Answer by identifying yourself as the parent or person in parental relationship to the child.
d. With the IHO's decision and the school district's Request for Review in mind, explain to the State Review Officer whether you agree or disagree with each of the school district's challenges to the IHO's decision. Briefly explain to the State Review Officer the reasons why you believe that the decision of the hearing officer should not be changed. 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.
e. You may also submit written argument in the form of a Memorandum of Law with your Answer. The Memorandum of Law in support of an Answer must not exceed 30 pages in length.
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.)
e. If you have prepared the answer but find you are
- in disagreement with some parts of the IHO's decision,
- asking the State Review Officer to change the IHO's decision, or
- asking the State Review Officer to go beyond what what ruled on in your favor in the IHO's decision
then you should consider filing an Answer with Cross-Appeal which, will allow you to respond to districts appeal and challenge those parts of the IHO's decision that you believe should be changed. The instructions for filing an Answer and Cross Appeal are contained in Section III of this Parent Guide.
3. Affidavit of Verification (Form D PDF / Form D MS WORD )
In the Affidavit of Verification, you 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 Answer 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.
After you have prepared the Answer and Affidavit of Verification, make two copies. One copy of the Answer must be served (i.e. delivered) upon the school district either by personal delivery, U.S. mail, or overnight delivery service (i.e. UPS or FedEx) to the school district or the school district's attorney(s) who signed the request for review. If you do not serve the Answer with Cross-Appeal on the school district's attorney, service must be made upon the school district clerk, any trustee or member of the Board of Education, to the superintendent of schools, or to a person in the superintendent's office who has been designated by the Board to accept service. Service of the Answer must occur within the timeline unless a State Review Officer has granted your request for an extension of the timeline
a. An Affidavit of Service is a written form that states how the papers were served. 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.
b. You may hand-deliver an Answer, but hand-delivery is not required (see below for mailing instuctions). If the Answer is hand-delivered to the school district, the person who delivered the Answer must sign an Affidavit of Personal Service (Form E PDF / Form E MS WORD ). The Affidavit of Personal Service must include:
- What papers were delivered
- Who delivered the papers
- Where the papers were delivered
- The date and time the papers were delivered, and
- A description of the person to whom the papers were given
Within 2 calendar days of the date that the Answer was served on the school district, the originals of the Answer, the Affidavit of Verification and the 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
If you fail to properly serve your Answer upon the school district within the timeline or your extended timeline, the school district may be prevented from responding your Answer and the State Review Officer may be required to reject your Answer. However, the State Reivew Officer will still conduct an impartial review of the IHO's decision.
If you neglect to file your Answer with the Office of State Review, the State Review Officer will not know that you have prepared one and will have no way to address the specific points that you made in your Answer at all. The State Review Officer will be required to issue a final decision within the decision timeline, and will still conduct an impartial review of the IHO's decision after reviewing the entire hearing record.
D. Seeking an Extension of Time (Extension Requests) (Form G PDF / Form G MS WORD )
1. If you need more time to prepare and serve an Answer, you may ask for a specific extension of the timelines. This allows the State Review Officer to move the decision timeline and, in turn, extend the timeline in which you must serve an Answer. You must request an extension before the date your Answer is due.
2. Your extension request must be in writing, addressed to the Office of State Review. Your request must explain why you need the extension of time and whether your child is currently receiving special education services either from a public school district/institution or from a private school/institution/provider.
3. The State Review Officer will want to know whether the district agrees with your request for additional time. Therefore, you must also contact the school district's attorney before filing your request and ask if the district will consent or oppose your request for more time and then write in your extension request to the Office of State Review whether the school district consented to or opposed the extension. Extensions for good faith settlement negotiations are allowed.
4. The State Review Officer will inform both parties in writing whether your request will be granted based upon the circumstances of the case.