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 the interim decision of an impartial hearing officer (IHO) which granted the respondent's (the district's) motion to dismiss the parent's claims pertaining to the 2020-21 and 2021-22 school years as barred by the statute of limitations.  The appeal must be dismissed.

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]).  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

Due to the limited nature of the appeal and disposition thereof, a full recitation of the facts and procedural history is not necessary.

The parent initiated the instant administrative proceedings by due process complaint notice dated February 14, 2025, alleging that the district failed to offer the student a free appropriate public education (FAPE) for the 2020-21, 2021-22, 2022-23, 2023-24, and 2024-25 school years (see IHO Ex. I at pp. 1, 3, 4).[1]  As relief, the parent sought an order directing the district to directly fund the student's tuition at the Rebecca School for the 2024-25 school year, reimbursement for the cost of the student's transportation for the 2024-25 school year, and funding for an unspecified number of hours of compensatory education to be delivered by the parent's chosen providers at their customary rates for occupational therapy (OT), physical therapy (PT), counseling services, and speech-language therapy to remedy a denial of a FAPE for the 2020-21, 2021-22, 2022-23, and 2023-24 school years (id. at pp. 4-5).

A prehearing conference was held on March 19, 2025 (Tr. pp.  1-11).  On March 28, 2025, the district made a motion to dismiss, asserting that the claims relating to the 2020-21, 2021-22, and 2022-23 school years were barred by the IDEA's two-year statute of limitations (Dist. Ex. 1 at pp. 4, 9).  On April 1, 2025, the parent amended her due process compliant notice to reflect the date of the student's most recent IEP (compare IHO Ex. I at p. 2, with IHO Ex. II at p. 2).  On April 4, 2025, the parent submitted a response to the district's motion to dismiss, arguing that the district's motion should be denied because the statute of limitations was tolled during the pendency of the federal class action Z.Q., by his parent G.J. et. al., v. New York City Dept. of Educ. et.al., 2022 WL 903003 (S.D.N.Y Mar. 28, 2022) (Parent Ex. A at p. 3).  On May 1, 2025, the district submitted a reply in support of its motion to dismiss on statute of limitations grounds (see Dist. Ex. 2).

A status conference was held on May 5, 2025, wherein the IHO and parties discussed the district's motion to dismiss and set a hearing date of June 5, 2025 for an impartial hearing on the merits of the parent's claims, with a supplemental date of June 9, 2025 (Tr. pp. 12-24).  During the status conference, the parent's representative requested and was granted the opportunity to submit additional papers in response to the district's reply (Tr. pp. 15-17).  On May 9, 2025, the parent submitted a sur reply to district's motion to dismiss (see Parent Ex. B).

In an interim decision on the district's motion to dismiss dated May 13, 2025, the IHO dismissed the parent's claims pertaining to the 2020-21 and 2021-22 school years as barred by the statute of limitations (Interim IHO Decision at p. 5).[2]  The IHO held that the parent's claims relating to the 2022-23 school year were not barred by the statute of limitations (id. at p. 4).

IV. Appeal for State-Level Review

The parent appeals, arguing that the IHO erred by granting the district's motion to dismiss the parent's claims in the due process complaint notice and amended due process complaint notice related to the 2020-21 and 2021-22 school years as barred by the statute of limitations.  More specifically, the parent contends that the IDEA's two-year statute of limitations was "tolled under the American Pipe doctrine see generally American Pipe & Const. Co. v. Utah, 414 U.S. 538 (1974)" because the student "is a putative class member of Z.Q. and is currently filing an individual suit on the basis of being denied a [FAPE] for the 20-21 and 21-22 school years due to issues with remote learning" (Req. for Rev. at pp. 2-3).[3]  Additionally, the parent asserts that the student's "claims for the first seven months of the 22-23 school year are not time barred because the continuing violation doctrine extended the statute of limitations for those claims until the last date of the 22-23 school year" (id. at p. 9).[4]

In an answer, the district responds to the parent's allegations.  The district argues that, regardless of the parent's arguments, her request for review must be dismissed at this juncture as it is an impermissible interlocutory appeal.

V. Discussion and Conclusion

At the outset, the evidence in the hearing record, which is sparse, shows that although the impartial hearing has commenced with respect to holding a preliminary conference and a status conference, as well as providing the parties with an opportunity to prepare the motion to dismiss and responsive pleadings, the matter nevertheless was scheduled to continue at the impartial hearing level (see Tr. pp.  17-21); thus, as the district asserts, the parent's contentions on appeal are not within the scope of a permissible interlocutory appeal and, at this juncture, is outside the scope of my review.  State regulations governing the practice of appeals from the decisions of IHOs related to matters concerning the provision of a FAPE to a student with a disability limit appeals from an IHO's interim determination to those involving pendency (stay-put) disputes (8 NYCRR 279.10[d]; see Educ. Law § 4404[4]).  Here, the IHO's interim decision, dated May 13, 2025, did not resolve a pendency dispute, but instead, addressed the district's motion to dismiss claims in the parent's due process complaint notice based on the statute of limitations (see generally Interim IHO Decision).  Therefore, to the extent that the parent appeals from an interim IHO decision, State regulation does not allow for an interlocutory appeal on issues other than pendency disputes, the parent's appeal must be dismissed as premature (see Application of a Student with a Disability, Appeal No. 24-475; Application of a Student with a Disability, Appeal No. 24-385; Application of a Student with a Disability, Appeal No. 22-120; Application of a Student with a Disability, Appeal No. 18-075).

While consideration of the parent's allegations on appeal is premature at this juncture, it does not prevent later review of the IHO's interim decision.  State regulation provides that a "party may seek review of any interim ruling, decision, or failure or refusal to decide an issue" in an appeal from an IHO's final determination (8 NYCRR 279.10[d]).  Thus, if necessary, the parent may appeal from the IHO's May 13, 2025 interim decision after the IHO closes the hearing record and issues a final determination on the remaining issues.

THE APPEAL IS DISMISSED.