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, regarding respondent's (the district's) provision of special education services to her son for the 2023-24 school year, with prejudice. The appeal must be sustained.

II. Overview—Administrative Procedures

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c).  The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely 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, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).  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 procedural posture of the matter—namely that it was dismissed with prejudice at the start of the impartial hearing without any development of an evidentiary record regarding the student through testimony or exhibits entered into evidence—the description of the facts and educational history of the student is limited to the parent's filing of the due process complaint notice and the IHO's dismissal of the due process complaint notice with prejudice.

In a due process complaint notice dated July 11, 2024, the parent alleged that the district failed to implement the student's IESP for the 2023-24 school year (Due Process Compl. Not. at pp. 1-2). The parent sought pendency based on an IESP dated March 26, 2024 (March 2024 IESP) (id.).  According to the parent, the March 2024 IESP recommended three periods per week of direct special education teacher support services (SETSS) in a group setting, one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group setting, one 30-minute session per week of individual occupational therapy (OT), one 30-minute session per week of OT in a group setting, and one 30-minute session per week of counseling services in a group setting (id. at p. 2).  For relief, the parent requested a bank of compensatory SETSS and related services for those services not provided in the 2023-24 school year, as well as district funding for the providers used by the parent in the 2023-24 school year at their contracted rate (id. at p. 3). The parent also sought attorney's fees and funding of services pursuant to pendency (id.).

The matter was assigned to an IHO with the Office of Administrative Trials and Hearings (OATH).  There is no evidence in the hearing record that the IHO held a prehearing conference. However, the record does contain an undated omnibus order addressing expectations of and deadlines for the parties with respect to preliminary matters and the impartial hearing (Omnibus Order).

An impartial hearing convened on March 3, 2025 before the IHO (Tr. pp. 1-11; IHO Decision at p. 1).  An attorney, from the Law Office of Philippe Gerschel, appeared on behalf of the parent (Tr. pp. 1-2).  A "consultant impartial hearing representative" appeared for the district (Tr. p. 4).  At the hearing, the parent's attorney advised that the parent was seeking to withdraw the due process complaint notice without prejudice and the IHO noted that the parent's attorney had sent an email, advising of this withdrawal, "today at 9:02" (Tr. pp. 5-6).  The parent's attorney argued that the email seeking withdrawal without prejudice was sent three minutes prior to the IHO formally starting the hearing and, therefore, it should be granted because the withdrawal was requested prior to the formal commencement of the hearing at 9:05 a.m. (Tr. pp. 1, 5-7).  The district's representative advised the district was "ready to proceed with the hearing" (Tr. p. 7).

In an order of termination issued that same day, March 3, 2025, the IHO dismissed the matter with prejudice (IHO Decision).  The order of termination stated that the district "objected to the withdrawal," the parent "had months to withdraw the case prior to the start of the hearing," and the district "would be prejudiced if the withdrawal were permitted to be without prejudice" (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in dismissing the parent's due process complaint notice with prejudice.  The parent argues that there was no pattern of egregious conduct warranting the extreme action of a dismissal with prejudice.  The parent further argues that the IHO's decision incorrectly states that the district "objected to the withdrawal" at the impartial hearing and the parent notes "[t]he record is clear: [the district] did not object to this case being withdrawn without prejudice and they did not argue there would be any prejudice."  Finally, the parent challenges the IHO's capacity for impartiality, alleging the IHO dismissed "at least 11 separate and distinct matters" upon finding that she did not have subject matter jurisdiction over implementation and/or enhanced rate claims brought pursuant to Education Law §3602-c.[1]  The parent attached additional evidence to support her allegation and further asserts that the IHO's subject matter dismissals are improper and evidence of the IHO's bias against all dually enrolled students.

In its answer, the district asserts the IHO was justified in dismissing the due process complaint notice with prejudice and, therefore, the IHO's decision should be upheld.  The district alleges their statement that "the district is ready to proceed with the hearing" indicates the district "did not agree" to the withdrawal being without prejudice.  The district requests that the parent's request for review be dismissed.

V. Discussion

In this matter, the hearing record produced as a part of the underlying proceedings does not justify the IHO's dismissal with prejudice.  First, the administrative record itself is lacking.  The factual basis of the IHO's decision is the parent's request for withdrawal on the day of the hearing; however, materials related to the parent's communication seeking to withdraw are unavailable because the IHO did not make them part of the administrative record in this proceeding.  Furthermore, the record contains no communication from the IHO to the parties addressing procedural matters, other than the undated omnibus order, which is silent as to the possibility of a withdrawal on or after the first date of the hearing being with prejudice.  On appeal, the parties, in their verified pleadings, agree that the parent withdrew the due process complaint notice in an email dated March 3, 2025, thus I will accept the parties' representations in this appeal.

Taking the available information as presented, the IHO's order of dismissal is in contravention of State regulations regarding withdrawals of due process complaint notices.  Specifically, pursuant to State regulation, a due process complaint notice may be withdrawn by the party requesting a hearing (see 8 NYCRR 200.5[j][6]).  If a party withdraws the due process complaint notice "[p]rior to the commencement of the hearing," meaning the first date the evidentiary hearing is held after the initial prehearing conference if one is conducted, the withdrawal shall be without prejudice unless the parties otherwise agree (8 NYCRR 200.5[j][6][i]).  After the first date of an impartial hearing, a party seeking to withdraw a due process complaint notice must immediately notify the IHO and the other party, and the IHO "shall issue an order of termination" (8 NYCRR 200.5[j][6][ii]).  In addition, a withdrawal "shall be presumed to be without prejudice except that the [IHO] may, at the request of the other party and upon notice and an opportunity for the parties to be heard, issue a written decision that the withdrawal shall be with prejudice" (8 NYCRR 200.5[j][6][ii]).  The IHO's written decision that such withdrawal shall be "with or without prejudice" is binding on the parties unless appealed to an SRO (8 NYCRR 200.5[j][6][ii]). Lastly, State regulations provide that nothing in the withdrawal section shall "preclude an impartial hearing officer, in his or her discretion, from issuing a decision in the form of a consent order that resolves matters in dispute in the proceeding" (8 NYCRR 200.5[j][6][iv]).

The parent's attorney withdrew the due process complaint notice on March 3, 2025, the first day scheduled for the impartial hearing, with some dispute as to whether an email was sent just prior to or just after the start of the hearing on that date (Tr. at pp. 3, 5-7; see IHO Decision).[2]  Even assuming the parent's request for a withdrawal came after the commencement of the hearing, State regulation provides that the IHO would have had discretion with respect to whether the withdrawal would be deemed with or without prejudice, if, and only if, the district requested it be with prejudice and the IHO provided the parent with notice that withdrawal of the complaint on or after the first date of the hearing could result in it being withdrawn with prejudice and an opportunity to be heard (8 NYCRR 200.5[j][6][i-ii]).  The record indicates the district did not make a request that the complaint be withdrawn with prejudice (see Tr. at pp. 1-11).  While the district alleges that its representative's statement of being ready to proceed on the record is equivalent to expressing a disagreement with the parent's request for a withdrawal without prejudice, this does not align with the record or the governing regulatory language (see Answer ¶ 6; Tr. pp 7).  State regulations specifically mandate that the district request the withdrawal be with prejudice and, in this instance, the district made no such request (see Tr. pp. 1-11; 8 NYCRR 200.5[j][6][ii]). In fact, after the district's representative stated the district was "ready to proceed with the hearing," the IHO specifically asked if the district had "any comment" on the withdrawal request being without prejudice, to which the district representative answered "[n]o, IHO" (Tr. pp. 6-7). The IHO then asked to confirm if the district had said, "nothing further as far as the request" to which the district representative replied "[n]o, nothing further"(Tr. p. 8).

Accordingly, the IHO erred in dismissing the due process complaint notice with prejudice. As the parent withdrew the matter, remand is not appropriate and, instead, the appropriate recourse is to have the matter marked as withdrawn without prejudice.

VI. Conclusion

Based on the foregoing, the IHO erred by dismissing the parent's due process complaint notice with prejudice.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the March 3, 2025 IHO Decision is modified, reversing the dismissal of the matter with prejudice and marking the parent's due process complaint notice, dated July 11, 2024, as withdrawn without prejudice.