Parent Guide to Responding to A School District's Appeal of the Decision of an Impartial Hearing Officer
SECTION III. Parent as Respondent and Filing a Cross-Appeal
- What To Do When You Get A Request For Review
- How to Give Notice of a Cross-Appeal
- How to Prepare an Answer with Cross-Appeal
Serving and Filing the Answer with Cross-Appeal
- Serving the Answer with Cross-Appeal
- Affidavit of Service
- Filing with the Office of State Review
- Improper Service/Filing
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 have decided that you do not agree with some of the determinations made by the IHO and wish to challenge portions of the IHO's decision, you should follow the instructions below for preparing, serving and filing an "Answer with Cross-Appeal." By making this filing, 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.
If you do not wish to challenge any part of the IHO's decision and only wish to oppose the district's challenges to the IHO's Decision in the Request for review you should not file a Cross-Appeal. Instead, you should follow the instructions for preparing an Answer in Section II of this Parent's Guide.
1. A Notice of Intention to Cross-Appeal (Form C PDF / Form C MS WORD )
If the School District has served you with a Notice of Intention to Seek Review and you also intend to challenge some parts of the IHO's decision, you must prepare a Notice of Intention to Cross-Appeal and serve it to the Board of Education of the school district no later than 30 calendar days after the date of the decision of the impartial hearing officer that you are Cross-Appealing. It is important that you provide notice to the district of your intent to Cross-Appeal.
2. A Case Information Statement (Form C PDF / Form C MS WORD )
You must complete a Case Information Statement along with your Notice of Intention to Cross-Appeal. You may combine the Case Information Statement together with the Notice of Intention to Cross-Appeal into a single document. The Case Information Statement identifies which issues you plan to ask a State Review Officer to review, which may be different than the list of issues that the school district wants the State Review Officer to review. This list is not the cross-appeal itself, and you are not limited to the issues identified on the Case Information Statement and can raise additional issues in your Cross-Appeal. However, if no party has raised a specific issue/ruling of the IHO, either in the Request for Review or the Cross-Appeal, it will be considered abandoned and will not be addressed by a State Review Officer.
3. How to Serve the Notice of Cross-Appeal/Case Information Statement
After the Notice of Intention to Cross-Appeal and Case Information Statement 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. Failure to Serve a Notice of Cross-Appeal/Case Information Statement
If you fail to Serve a Notice of Intention to Cross-Appeal/Case Information Statement upon the school district, it does not automatically bar your Cross-Appeal. You should still proceed with preparing and serving your Answer with Cross-Appeal within the time limits and the State Review Officer will decide whether to allow your Cross-Appeal in light of the particular circumstances in the case.
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 with Cross-Appeal. You must serve the school district with the Answer with Cross-Appeal 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 with Cross-Appeal, 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 with Cross-Appeal.
a. The Answer with Cross-Appeal 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 with Cross-Appeal, 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 with Cross-Appeal by identifying yourself as the parent or person in parental relationship to the child.
d. With the school district's Request for Review in mind, explain to the State Review Officer whether you agree or disagree with the school district's challenges to the IHO's decision. This will be the answering or responding portion of your pleading. 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. Next, address your "Cross-Appeal" by making 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. Number each issue/IHO ruling separately. 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. Again, 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.
f. In general, only the issues/rulings raised by either the school district or the parent will be addressed by the State Review Officer and if neither the school district or you challenge an issue (either in the school district's request for review or your Answer with Cross-Appeal) the State Review Officer will not address it and will assume that both parties are abandoning the issue.
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. You may also submit written argument in the form of a Memorandum of Law with your Answer with Cross-Appeal. The Memorandum of Law in support of an Answer with Cross-Appeal 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.).
i. 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 appropriate 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.
j. If you have prepared Answer with Cross- Appeal but find you are
- NOT in disagreement with some the IHO's decision,
- NOT asking the State Review Officer to change the IHO's decision, or
- NOT asking the State Review Officer make rulings in addition to those that the IHO made
and you only wish to oppose the school district's challenges to the IHO's decision, then you should consider filing an Answer, which will allow you to respond to school districts appeal. The instructions for filing an Answer are contained in Section II 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 with Cross-Appeal 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 with Cross-Appeal and Affidavit of Verification, make two copies. One copy of the Answer with Cross-Appeal 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, the superintendent of schools, or a person in the superintendent's office who has been designated by the Board to accept service. Service of the Answer with Cross-Appeal 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 with Cross-Appeal, but hand-delivery is not required (see below for mailing instructions). If the Answer with Cross-Appeal is hand-delivered to the school district, the person who delivered the Answer with Cross-Appeal 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.
c. If the Answer with Cross-Appeal is served by mail or overnight delivery service, the person who mailed the Answer with Cross-Appeal must sign an Affidavit of Service by Mail (Form F PDF / Form F MS WORD ).
Within 2 calendar days of the date that the Answer with Cross-Appeal was served on the school district, the originals of the Answer with Cross-Appeal, 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 with Cross-Appeal upon the school district within the timeline or your extended timeline, the school district may be prevented from responding your Cross-Appeal and the State Review Officer may be required to dismiss your Cross-Appeal.
If you neglect to file your Answer with Cross-Appeal 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 your Answer with Cross-Appeal at all. The State Review Officer will be required to issue a final decision within the decision timeline, regardless of whether or not you file your Answer with Cross-Appeal.
E. 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 with Cross-Appeal, 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 with Cross-Appeal. You must request an extension before the date your Answer with Cross-Appeal 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 school 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 school 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.