OSR

Office of State Review

Filing an Appeal

  1. How to Initiate an Appeal
  2. Prepare the Appeal
  3. Serve the Petition
  4. Notarize the Affidavit of Personal Service
  5. File the Appeal with the State Review Officer
  6. Improper Filing of an Appeal (Effective October 1, 2003)
  7. Answer (Response to the Petition)
  8. Petitioner's Reply to Answer
  9. Filing Responsibility
  10. Challenging the Impartiality of the State Review Officer
  11. Decision of the State Review Officer
  1. How to Initiate an Appeal

A Notice of Intention to Seek Review (Form A) must be served on the board of education of the school district not less than 10 days before the petition is served on the school district, and within 25 days from the date of the hearing officer's decision. The petition must be served by hand-delivery, on the board of education of the school district within 35 days from the date of the hearing officer's decision.  If the hearing officer's decision was served by mail on the petitioner, the date of mailing plus the four (4) following days must be excluded in computing the 25- or 35-day period.

After the Notice of Intention to Seek Review is typed, a copy of the notice must be hand-delivered by someone other than the petitioner, who is at least 18 years old.  This service must be to 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.  The original copy of the Notice of Intention and an Affidavit of Service of the copy of the notice upon the Board should be mailed to the Office of State Review of the New York State Education Department, 80 Wolf Road, Suite 203, Albany, NY 12205-2643 within five (5) days after the delivery of the copy to the Board.

  1. Prepare the Appeal
Please Note: The Office of State Review discourages parties from using professional or desktop binding systems for papers submitted to the Office of State Review (e.g., VeloBind, comb binding, ZipBind, spiral binding, ProClick, tape binding, or thermal binding). To facilitate processing, it is requested that parties simply use standard staples when fastening together pleading pages for submission.

In addition to the Notice of Intention to Seek Review, the petitioner must prepare a Notice with Petition (Form B), the Petition, an Affidavit of Verification (Form C) and an Affidavit of Personal Service (Form D).

Notice with Petition (Form B).  This document should have the same heading in the box in the upper left-hand corner as the heading in the upper left-hand corner of the Notice of Intention to Seek Review.  The body of the Notice with Petition must contain the words exactly as they appear on Form B, and must be signed by you at the bottom.  A copy of the Notice with Petition should be attached to the Petition.  One copy of the Notice with Petition, a copy of the Petition and a copy of the Affidavit of Verification must be delivered to the Board of Education in the same way that the Notice of Intention to Seek Review was delivered to the Board.

Petition.  There is no standard form for the Petition.  However, the Petition should be prepared in accordance with the following directions.

  • The Petition should be typewritten using standard double-spacing, in 12-point Times NewRoman font, on standard 8 1/2 by 11 inch white paper, and no longer than 20 pages. Top and bottom margins should be no smaller than 1 inch and left and right margins should be no smaller than 1 inch.
  • A caption or heading should appear in the upper left hand corner in the same manner as it appears on the Notice of Intention to Seek Review and the Notice with Petition.
  • Begin the Petition by identifying yourself as the parent or person in parental relationship to the child.
  • State the child's age, and the name of the school, if any, which the child is attending.
  • Clearly state the reasons for challenging the impartial hearing officer's decision, indentifying the findings, conclusions and orders to which exceptions are taken.
  • 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.  If possible, you should refer to the evidence in the record, such as pages in the written transcript of the hearing or written documents which were presented at the hearing, to support your argument.
  • If you object to the way in which the hearing was conducted, you should state your objection, and if possible, you should refer to pages of the written record of the hearing which relate to your objection.
  • See #3.  Serving the Petition for information on timelines for your appeal.  If you fail to initiate a timely appeal, clearly state your reason for such failure within the petition.  Please note that the State Review Officer has the discretion to excuse a failure to commence a timely appeal if good cause is shown within the petition.  The State Review Officer may dismiss any appeals that are not filed in a timely manner.
  • 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 overturned or amended, you may do so in the Petition.  You may also submit a separate document detailing your legal arguments.  The separate document is a Memorandum of Law.  Your Memorandum of Law 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 20 pages. Top and bottom margins should be no smaller than 1 inch and left and right margins should be no smaller than 1 inch.
  • Indicate what relief or remedy is sought by bringing the appeal.  At the end of the Petition, you should explain to the State Review Officer what you would like to see happen.  For example, your child's classification should be changed or not be changed, and/or your child's class or special service(s) should be changed or not be changed.
  • Affidavit of Verification (Form C). In this form the petitioner makes an oath in front of a Notary Public or Commissioner of Deeds that the statements in the petition are true to the best of the petitioner's knowledge. You will usually find a Notary Public or a Commissioner of Deeds in a government office, or a bank, or by looking in the yellow pages of your telephone directory.
  1. Serve the Petition

The petitioner must have a copy of the Notice with Petition, a copy of the Petition and a copy of the Affidavit of Verification hand-delivered to the Board of Education by someone over the age of 18 who is not a party to the appeal (not you or the child involved).  These documents must be served, by hand-delivery, on the school district within 35 days from the date of the hearing officer's decision. If the hearing officer's decision was served by mail on petitioner, the date of mailing plus the four (4) following days must be excluded in computing the 25 or 35 day period.

Two photocopies of all the papers should be made. One photocopy must be delivered to the Board and you should keep the other photocopy.  The original of the notice with Petition, the Petition and the Affidavit of Verification and an Affidavit of Service of a copy of the Petition upon the Board are filed with the State Review Officer (see #5).

  1. Notarize the Affidavit of Personal Service

The Affidavit of Personal Service, (Form D) must be signed in the presence of a Notary Public or a Commissioner of Deeds by the person who delivered the documents described in #3 to the Board of Education.  The original of the Affidavit should be attached to the original Petition.  You should keep a copy of the Affidavit.

  1. File the Appeal with the State Review Office 

The petitioner must file the following items with the Office of State Review of the New York State Education Department, 80 Wolf Road, Suite 203, Albany, NY 12205-2643. All papers sent must be the original.

Notice of Intention to Seek Review  /  Form A
Notice with Petition  /  Form B
Petition
Affidavit of Verification  / Form C
Affidavit of Personal Service  / Form D

No filing by facsimile or electronic transmission is permitted.

  1. Improper Filing of an Appeal (Effective October 1, 2003)

Petitions not filed in compliance with the requirements of Part 279 are subject to dismissal at the discretion of the State Review Officer.

  1. Answer (Response to the Petition)

Within 10 days after receiving the Petition, the respondent must serve an Answer to the Petition in the format outlined below*. The Answer may be served by personal delivery to the petitioner or by mailing a copy of the Answer to the petitioner. If the petitioner is represented by an attorney, the Answer should be served on the petitioner's attorney. Written argument, in the form of a Memorandum of Law, may also be submitted by the respondent.

*The Answer and Memorandum of Law 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 20 pages. Top and bottom margins should be no smaller than 1 inch and left and right margins should be no smaller than 1 inch.

If the Board of Education is the petitioner, you should prepare an Answer to the Petition. After reading the Petition, you should decide whether you disagree with any of the statements in the separately numbered paragraphs of the Petition. In your Answer, you should respond to each paragraph of the Petition, by admitting or denying the truth of the statements in each paragraph. After making admissions and denials in your Answer, you should briefly explain to the State Review Officer why you believe that the decision of the hearing officer should not be changed. A photocopy of the Answer should be served upon the petitioner, as described in #6.

If the Answer is hand-delivered to the Board of Education, the person who delivered the Answer must sign an Affidavit of Personal Service (Form D). If the Answer was served by mail, the person who mailed the Answer must sign an Affidavit of Service by Mail (Form E).  The person must sign either Affidavit in the presence of a Notary Public or Commissioner of Deeds.  The original of the Answer and of the Affidavit of Service must be sent to the Office of State Review of the New York State Education Department, 80 Wolf Road, Suite 203, Albany, NY 12205-2643 within two (2) calendar days of the date that the Answer was served on the petitioner.

  1. Petitioner's Reply to Answer

The petitioner may reply to the Answer of the respondent only with respect to any procedural defenses asserted in the Answer or with respect to any additional documentary evidence filed with the Answer. 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. Top and bottom margins should be no smaller than 1 inch and left and right margins should be no smaller than 1 inch.

No other Reply will be accepted by the State Review Officer. The Reply must be served on the respondent and filed, together with an Affidavit of Service (Form D or E), with the Office of State Review of the New York State Education Department, 80 Wolf Road, Suite 203, Albany, NY 12205-2643 within three (3) calendar days after the service of the answer.

  1. Filing Responsibility

In each appeal, it is the Board of Education's responsibility, whether it is the petitioner or the respondent, to file with the Office of State Review of the State Education Department, 80 Wolf Road, Suite 203, Albany, NY 12205-2643, the decision of the impartial hearing officer, a bound copy of the written transcript(s) before the impartial hearing officer, including a corresponding word index for the written transcript(s), as well as an electronic transcript(s), and a copy of the original exhibits accepted into evidence at the hearing and a corresponding index to the exhibits.  Additionally, the Board of Education shall submit a Certification with the record, that the record submitted is the complete hearing record. 

  1. Challenging the Impartiality of the State Review Officer

Any party to an appeal may challenge the impartiality of the State Review Officer.  An SRO may not have any personal, economic or professional interest in the hearing to be reviewed.  The State Review Officer may not have been employed at any time by a party to the appeal, and may not, in any way, have been substantially involved in the development of any State or local policy or procedure challenged at the hearing.

  1. Decision of the State Review Officer

A State Review Officer must issue a written decision on your appeal.  Copies of the State Review Officer's decision will be mailed to you, or your attorney, if you are represented by an attorney, and to the attorney for the Board of Education. 

  1. Judicial Review of the State Review Officer's Decision

If you are dissatisfied with the State Review Officer's final determination, you may obtain judicial review of such determination in either State Supreme Court or Federal District Court.  A lawsuit to review the State Review Officer's decision must be commenced within four (4) months after the decision is rendered.  Instructions for requesting a certified copy of the administrative record before the State Review Officer may be found here.

 

Last Updated: June 16, 2015