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.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which dismissed her due process complaint notice against the respondent (the district) with prejudice.  The appeal must be sustained in part.

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]).  Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm]. 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804).  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

Given the IHO's dismissal of this matter on procedural grounds prior an impartial hearing on the merits, and limited information in the parties' allegations regarding the student in the hearing record, a detailed recitation of the facts and procedural history is not possible.

Briefly, on April 20, 2023, a CPSE convened, found the student eligible for special education as a preschool student with a disability, and developed an IEP with an implementation date of April 2023 (see generally IHO Ex. VII).  The April 2023 CPSE recommended five 60-minute sessions per week of group special education itinerant teacher (SEIT) services, together with three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual occupational therapy (OT), four 30-minute sessions per week of individual physical therapy (PT), and an individual health aide (id. at pp. 1, 30).[1]

A. Prior Proceedings—2023-24 School Year

The parent filed a due process complaint notice on July 15, 2024, and three subsequent amended due process complaint notices with respect to the 2023-24 school year (see IHO Ex. II).  However, in an order of dismissal dated November 12, 2024, the IHO dismissed the parent's complaints, without prejudice, because the IHO found that the parent failed to provide in any of her four due process complaint notices a "clear 'description of the nature of the problem'" or a proposed resolution to the problem (IHO Ex. II at p. 4).

Thereafter, the parent filed a due process complaint notice on December 16, 2024 regarding the 2023-24 school year (Tr. p. 4).[2]  The district submitted a due process response together with a prior written notice of recommendation for a March 6, 2023 CSE meeting (see IHO Ex. V).[3]

B. Due Process Complaint Notice—2024-25 School year

In a due process complaint notice dated November 4, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the following 2024-25 school year (see generally Due Proc. Compl. Not.).  The parent alleged that the student was eligible to receive special education services as a student with an other health impairment (OHI) and was attending a nonpublic school (id. at p. 1).  The parent asserted that pendency was in the April 2023 CPSE IEP (id. at pp. 1-2).  Next, the parent alleged that the CSE convened on March 6, 2023 and developed an IEP for school-aged programming which recommended a 12:1+1 special class in English language arts (ELA), math, social studies, and science with related services of three 30-minute sessions per week of individual OT, four 30-minute sessions per week of individual PT, three 30-minute sessions per week of individual speech-language therapy, and a daily individual paraprofessional (id. at p. 2).  The parent asserted that the program recommend in the March 2023 CSE IEP was "far too restrictive" for the student (id.).  The parent alleged that the student had made progress with a "SEIT program and require[d] either a continuation of the broader SEIT program or an appropriate placement in a hybrid special education/general education program that should address [the student's] special education needs in a mainstream environment" (id. at pp. 2-3).  The parent requested a finding that the March 2023 CSE denied the student a FAPE for the 2024-25 school year and that the CSE should have continued the "12-month SEIT program" for the 2024-25 school year (id. at p. 3).  The parent alleged that she was left with "no choice" but to implement the SEIT programming independently and seek reimbursement from the District (id. at p. 3). As relief, the parent requested district funding for the program and related services recommended in the April 2023 CPSE IEP for the 2024-25 school year at the "provider's contracted rate" (id.).  Lastly, the parent requested a bank of compensatory education for any services in which the student was not provided for the 2024-25 school year (id. at pp. 3-4).

The district submitted a due process response to the parent's November 4, 2024 due process complaint notice and alleged that the March 2023 CSE IEP offered the student a "program and placement [that was] reasonably calculated to enable the student to obtain meaningful educational benefits" (see generally IHO Ex. I).

C. Impartial Hearing Officer Decision

On December 17, 2024, a prehearing conference convened before the IHO with the Office of Administrative Trials and Hearings (OATH) (Tr. pp. 1-26).

On February 26, 2025, the IHO issued an order of consolidation and prehearing order (see generally Interim IHO Decision).  In her interim decision, the IHO first recounted the procedural history of this matter and her prior order of dismissal of the parent's complaint regarding the 2023-24 school year (id. at pp. 3-4; see IHO Ex. II).  Next, the IHO determined there was "substantial overlap of allegations and evidence" in the parent's November 4, 2024 due process complaint notice regarding the 2024-25 school year and the parent's December 16, 2024 due process complaint notice regarding the 2023-24 school year (Interim IHO Decision at pp. 5-6).  When read together, the IHO found that the following "allegations" emerged: on March 6, 2023 a "[t]urning 5" meeting was held and an IEP was developed which recommended a 12:1+1 special class in a community school with related services and an implementation date of September 7, 2023; on April 20, 2023, a CPSE meeting was held and an IEP was developed with an implementation date of April 2023; and for both the 2023-24 and 2024-25 school years the student was parentally placed at a nonpublic school (id.).  Accordingly, the IHO consolidated both cases (id.at p. 7).

However, the IHO found that neither of the due process complaint notices provided a description of the student's educational program and did not afford the district notice of the parent's claims sufficient for the district to defend its case at the impartial hearing (Interim IHO Decision at p. 6).  The IHO directed the parent to address the compliance timeline by email and if no email was received, the parent's consolidated cases would be dismissed (id. at p. 7).  In addition, the IHO requested certain information from the parent regarding the services received by the student for both the 2023-24 and 2024-25 school years, the starting date of the services, the provider information for the services, and the hourly rate for each service (id.).  The IHO directed the district to provide notice of its affirmative defenses (id.).  Next, the IHO stated that pendency would be addressed during the impartial hearing but based upon the "submitted" information pendency did not lie in the April 2023 CPSE IEP because the student did not stay put in the program (id.).  Lastly, the IHO stated that the failure to comply with her order would result in a "waiver of defenses or dismissal of claims with prejudice" (id.).

In a final order of dismissal dated March 4, 2025, the IHO dismissed the consolidated cases with prejudice (IHO Decision at p. 2).  In her decision, the IHO referred to her February 26, 2025 order of consolidation and prehearing order in which she directed the parent to address the "compliance timeline" in an email to both the IHO and district no later than 4:00 p.m. on the third business day after the date of the decision, or the consolidated cases would be dismissed (id.).  As of March 3, 2025, the IHO did not receive an email with respect to the compliance timeline and therefore she dismissed the consolidated cases with prejudice (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in dismissing her due process complaint notice with prejudice.  The parent contends that the IHO exceeded her authority in requiring the parent to request an extension and that the IHO's directive was an improper solicitation for the parent to request an extension of the compliance deadline.  Next, the parent asserts that there was no egregious conduct that warranted a dismissal with prejudice.  Furthermore, the parent seeks an impartial hearing on the merits and a determination on pendency.  As relief, the parent seeks remand for a determination on the merits, or alternatively, that the IHO's decision dismissing the case "with prejudice" be modified to dismissal "without prejudice."

In an answer, the district denies the material allegations contained in the request for review.  The district argues that the IHO acted within her authority to dismiss the parent's due process complaint notice.  Additionally, the district argues that the dismissal with prejudice was proper because the parent refiled a "defective" due process complaint notice, failed to meaningfully participate in the prehearing process, and ignored the IHO's directives.  Lastly, the district argues that the April 2023 CPSE IEP is not the basis for the student's pendency.

V. Discussion

A. Pendency

The parent asserts that the student has an automatic right to pendency and the last agreed upon program and placement was contained in the April 2023 CPSE IEP.

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[4]  Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).  The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).  A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]).  The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906).  Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).  Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171).  However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).  Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).

Here, the issue of pendency was first raised by the parent in her November 4, 2024 due process complaint notice in which the parent asserted that pendency was based on the April 2023 CPSE IEP that consisted of five 60-minute sessions per week of SEIT services, three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual OT, four 30-minute sessions per week of individual PT, and an individual health aide (Due Proc. Compl. Not. at pp. 1-2).  The due process complaint notice also attached a proposed pendency implementation form stating that pendency was in the April 2023 CPSE IEP (id. at pp. 5-6).  The district did not agree to the parent's proposed pendency program.

Next, pendency was raised by the parent during the December 17, 2024 prehearing conference wherein the parent again stated that pendency was in the April 2023 CPSE IEP (Tr. pp. 9, 13, 18, 20).  The district did not state its position on pendency (see generally Tr. pp. 9-25).  The parent again raised the issue of pendency in an email dated December 23, 2024 and in a December 24, 2024 email to the parties, the IHO directed the district to either sign the pendency implementation form or submit, in writing, its position with respect to pendency (IHO Ex. VI at pp. 3-4).  It is unclear if the district representative received the December 23rd or 24th emails due to confusion regarding who was representing the district (Interim IHO Decision at p. 5; IHO Ex. VI at p. 2).  The parent again followed up with the IHO in an email on February 21, 2025 and someone from the district acknowledged the email and provided the name of the district's representative (IHO Ex. VI at p. 1).  The district did not provide its position on pendency during the proceedings.[5]  However, in her interim decision, the IHO stated that pendency would be addressed during impartial hearing (IHO Interim Decision at p. 7).  However, the IHO also stated that based upon the information thus far placed in the hearing record up to that point in time, the "[s]tudent's pendency rights do not entitle [p]arent to funding for the program listed in the [April 2023] IEP, because [the] [s]tudent has not 'stayed put' in that program, but is attending either a different school or a different program of services, or both" citing to Ventura de Paulino, 959 F.3d at 533-35 (id.).  Accordingly, it appears that the IHO felt that the parties needed a further opportunity to be heard during the merits hearing in order to firmly resolve fact issues regarding pendency, but that it appeared unlikely that the parent could rely on a pendency theory to obtain funding for the private SEIT services that she obtained under a pendency theory.

There was no flaw in the IHO's approach.  It appears that the parent rejected the public school placement offered due to LRE programming concerns and instead opted for private self-help relief. The pendency provision does not require that a student must remain in a particular site or location (Concerned Parents v. New York City Bd. of Educ., 629 F.2d at 756) or at a particular grade level (Application of a Student with a Disability, Appeal No. 16-040; Application of the Dep't of Educ., Appeal No. 13-086; Application of a Child with a Disability, Appeal No. 03-032). Thus the IHO was correctly concerned that there was nothing in the record to show that the parent was entitled to funding for privately obtained services under a pendency theory due to the holding in Ventura de Paulino, but before fully closing the door, the IHO indicated that she would allow the parties a further opportunity to make a record on that topic during an evidentiary hearing.  However, the evidentiary hearing did not later materialize, and it is to that issue I will address next.

B. Dismissal of Due Process Complaint Notice with Prejudice

Turning next to the parent's allegation that the IHO erred by dismissing the matter with prejudice, the parent argues that the IHO exceeded her authority by conditioning the parent's complaint on the parent requesting an extension of the compliance date "despite the regulations expressly prohibiting [the IHO] from doing so" (Req. for Rev. at pp. 2-3).  In addition, the parent asserts that there was no pattern of egregious behavior on her part to warrant the most extreme action of a dismissal with prejudice.  Furthermore, the parent argues that the matter should be heard on the merits.  The district argues that the IHO acted within her authority to dismiss the due process complaint notice with prejudice because "she was managing the post-consolidation procedural requirements, which is an entirely appropriate judicial function" and the parent disregarded her obligations as directed by the IHO (Answer ¶¶ 7, 11).

As a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the IHO regarding the conduct of the impartial hearing (see Application of a Student with a Disability, Appeal No. 14-090; Application of a Student with a Disability, Appeal No. 09-073; Application of a Child with a Disability, Appeal No. 05-026; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-061).  Under sufficiently egregious circumstances, SROs have found that an IHO has properly dismissed a parent's due process complaint notice for his or her failure to comply with an IHO's reasonable directives by not attending an impartial hearing either in person or by an attorney or advocate (see, e.g., Application of a Student with a Disability, Appeal No. 18-111 [finding that it was within the IHO's discretion to schedule the impartial hearing at a district location when the parent did not submit a formal request for a different location and to dismiss the due process complaint notice without prejudice when the parent and her advocates did not appear]; Application of a Student with a Disability, Appeal No. 09-073 [finding that an IHO had a sufficient basis to dismiss a matter with prejudice after the district had rested its case, parent's counsel had been directed by the IHO to produce the parent for questioning by the district at a following hearing date, and neither the parent nor counsel for the parent appeared at the subsequent hearing date]).

Nevertheless, a dismissal with prejudice should usually be reserved for extreme cases (see Nickerson-Reti v. Lexington Pub. Sch., 893 F. Supp. 2d 276, 293-94 [D. Mass. 2012]).  In upholding a dismissal with prejudice, SROs have considered whether there was adequate notice to the party at risk for dismissal and whether the party engaged in a pattern of conduct or in conduct so egregious as to warrant the maximum sanction of dismissal of the due process complaint notice with prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 20-137; Application of a Student with a Disability, Appeal No. 20-009; Application of a Student with a Disability, Appeal No. 20-008; Application of a Student with a Disability, Appeal No. 18-111).[6]

Here, after the filing of the due process complaint notice on November 4, 2024, the IHO first contacted the parties by email on December 4, 2024, setting forth the next steps in the case (Interim IHO Decision at p. 3; IHO Ex. III at pp. 3-5).  The IHO's email stated that the resolution period expired on December 4, 2024 and provided dates for a prehearing conference, including December 17, 2024, the date on which the prehearing conference was held (Tr. pp. 1-26; IHO Ex. III at pp. 1, 4).  The decision due date was January 18, 2025 (Tr. p. 24).  As the parent filed a second due process complaint notice relating to the 2023-24 school year, the resolution period for that complaint expired on January 15, 2025 (id.).  In connection with the district's representation that a motion to dismiss would be made to dismiss the parent's due process complaint notice for "a lack of proper description of the claim of the case for the [due process complaint notice]," the IHO stated that there should be a decision of the district's motion before any compliance deadlines came up (Tr. pp. 20-21, 24).  After the prehearing conference and on December 17, 2024, the IHO stated a warning to the parties in an email to "be mindful of the January 18, 2025 compliance date," that is, the IHO's decision due date (IHO Ex. IV at p. 1).

Thereafter, on February 26, 2025, the IHO issued an order of consolidation and prehearing order (see Interim IHO Decision).  The interim IHO decision consolidated the two due process complaint notices (Interim IHO Decision at pp. 2-7).  In her interim decision, the IHO stated that as a result of the consolidation, the two cases would proceed on the timelines set forth for the complaint pertaining to the 2024-25 school year (id. at p. 7).  The IHO stated that the decision compliance date was January 18, 2025 which already passed and directed the parent to address the compliance deadline in an email in the third business day after the date of the interim decision or the consolidated cases would be dismissed with prejudice (id.).[7]

Consequently, the IHO dismissed the due process complaint notice based solely upon noncompliance with the February 26, 2025 prehearing order directing the parent "to address the compliance date" which was past due on January 18, 2025 (IHO Decision at p. 2).  The IHO reiterated the directives contained in the February 26, 2025 interim decision that directed the parent to "address the compliance timeline by email to the IHO and the [d]istrict no later than 4 p.m. on the third business day after the decision, or the consolidated cases will be dismissed with prejudice" (IHO Decision at p. 2; Interim IHO Decision at p. 7).  The IHO decision further restated her prior directive that failure to comply with the prehearing order will result in a waiver of defenses or dismissal of the claims with prejudice (IHO Decision at p. 2).  The IHO concluded that the prehearing order was issued on February 26, 2025 and the third business day after that date was March 3, 2025, and the IHO did not receive any communication from the parent addressing the compliance timeline by 4:00 p.m. on March 3,2025 (id.).[8]

The IHO and the parties were faced with a conundrum that is unfortunately not uncommon with a stressed due process hearing system.  The timeline for conducting the proceeding was coming to a close and the IHO lacked an adequate record from the parties to decide the issues after numerous procedural hurdles and noncompliance on all sides (inadequate due process complaints, representation confusion without adequate communication by the parties, etc.) (IHO Ex. ii; iv; vi).  It would be very unlikely that a merits decision lacking an evidentiary would withstand scrutiny if reviewed in an administrative or judicial appeal, and thus the IHO's concern was valid.  However, while the parent had adequate notice of a potential dismissal with prejudice, a dismissal with prejudice should usually be reserved for extreme cases (see Nickerson-Reti, 893 F. Supp. 2d at 293-94).  The IHO clearly warned the parties of her concern regarding the timelines for concluding the proceeding which was appropriate, and she did not solicit an extension of the timeline per se, but directed the parent to address it.  I do not interpret the IHO's interim decision as directing the parent to request an extension, but merely to state her position as to what should happen next in light of the impending decision due date.  However, it is not clear to me why the IHO directed the timeline to the parent only to address the problem since both parties had a stake in that issue and either or both of them could have addressed the timeline issue.

Here, despite not responding to the IHO's directive for an email regarding the compliance date, there is no indication that the parent and her representative were otherwise negligent in pursuing this matter, or in communicating with the IHO and the district.  The parent's representative attended the prehearing conference on December 17, 2024 (see Tr. pp. 1-26).  While the parent does not offer any reason why she did not respond other than stating the IHO improperly solicited an extension request, I nonetheless find that a dismissal with prejudice for a single instance of not complying with a directive for an email on the compliance date, without more, is neither a pattern of conduct (as it is a single instance), nor conduct so egregious, to warrant the extreme sanction of a dismissal with prejudice (see Application of a Student with a Disability, Appeal No. 24-014; see also Application of a Student with a Disability, Appeal No. 20-137; cf. Application of a Student with a Disability, Appeal No. 24-353).

Based upon the foregoing, I find that the IHO improperly dismissed the due process complaint notice with prejudice for the parent's failure to comply with such directive to respond to concerns regarding the decision due date and the fact that an evidentiary hearing had yet to occur. Because there was an insufficient evidentiary record to address the merits, an opportunity for an impartial hearing should be provided.  In this instance, Accordingly, the IHO's order of dismissal must be vacated with prejudice will be modified to dismissal without prejudice. Should the parent elect to file a new due process complaint notice, the parent would do well to address the concerns laid out in the IHO's interim decision in this proceeding and provide such information to the district during the resolution period, which may clarify the disputed issues and enhance the efficiency of the proceedings.

VI. Conclusion

Having determined that the IHO erred by dismissing this case with prejudice, I will grant the parent's alternative request and the IHO's decision will be modified to dismiss the case without prejudice to provide another opportunity to be heard if  the parent cannot resolve her dispute with the district.

I have considered the parties' remaining claims and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated March 4, 2025, is modified by striking that portion which dismissed the parent's due process complaint notice "with prejudice" and replacing it with "without prejudice."