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, with regard to the 2024-25 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 limited nature of the appeal and the procedural posture of the matter—namely that it was dismissed with prejudice based on the nonappearance of the parent at the initial impartial hearing date with no record development, including no testimony taken or exhibits entered into evidence—the educational history of the student will be limited to a brief description of the due process complaint notice below and the procedural history is similarly limited to the dismissal of the due process complaint with prejudice that occurred at the outset of the proceeding.

A. Due Process Complaint Notice

Briefly, by a due process complaint notice dated July 15, 2024, the parent claimed that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (IHO Ex. V).  The parent alleged that the district failed to meet its statutory obligation to meet annually and evaluate the student in all areas of her disability (id. at p. 1).  The parent alleged that the district "failed to perform updated evaluations and assessments on a timely basis" (id.).  Moreover, the parent alleged that the "[district] ha[d] taken action for the student and developed a program," which the parent described as an "IEP/IESP" dated May 26, 2024, but did not implement said program (id.).  For relief, the parent requested an order finding that the district denied the student a FAPE for the 2024-25 school year, that the student be reevaluated, and that the district be compelled to provide the previously recommended services and a bank of compensatory education services that were not provided by the district although previously recommended (id. at p. 2).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on February 25, 2025 (Tr. pp. 1-10).  In a decision dated March 5, 2025, the IHO did not reach the merits of the parent's due process complaint notice, instead, the IHO dismissed the parent's due process complaint notice with prejudice (IHO Decision at p. 2-3).[1]  The IHO summarized the procedural history first noting that the district requested a subpoena be issued for the parent on February 21, 2025 (id. at p. 2;).  The IHO noted further that he issued the subpoena on February 24, 2025, the day before the scheduled hearing (IHO Decision at p. 2, see also IHO Exhibit II).  The IHO noted that the parent's advocate refused to produce the parent even though the IHO would have rescheduled the hearing to accommodate the appearance (IHO Decision at p. 3).  According to the IHO, the parent's advocate requested a withdrawal of the due process complaint notice without prejudice after the IHO told her the matter would be dismissed (id.).  The IHO determined that a dismissal of the matter with prejudice would be appropriate (id.).  The IHO then found that because the parent did not appear and the due process complaint notice was not accompanied by an authorization of representation, the parent's advocate "lacked standing to bring this suit" and dismissed the matter with prejudice (id. at pp. 3-4).

IV. Appeal for State-Level Review

The parent appeals, alleging primarily that the IHO erred in dismissing the matter and by issuing a subpoena after an untimely request by the district which deprived the parent of sufficient notice.  Moreover, the parent alleges that the IHO improperly broadened the scope of the subpoena and impermissibly dismissed the parent's due process complaint notice with prejudice as the parent had requested to withdraw the case without prejudice and the due process hearing had not formally commenced.  The parent argues further that the district did not raise a colorable objection to the parent's request to withdraw the matter without prejudice at the due process hearing.

In an answer, the district argues that the IHO exercised his broad discretion properly and the dismissal with prejudice was appropriate given the parent's advocate's failure to comply with the IHO's reasonable directives.

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[2]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[3]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

VI. Discussion

Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *7-*8 [S.D.N.Y. Mar. 30, 2017]; J.S. v. New York City Dep't of Educ., 2017 WL 744590, at *5 [S.D.N.Y. Feb. 24, 2017]; Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]).  Also, 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 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).  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 the instant matter, the IHO issued a subpoena, on the day prior to the scheduled hearing, directing the parent to appear at an impartial hearing (IHO Ex. II at p. 1).[4]  In response to the IHO's email advising of the subpoena, the parent's advocate emailed the IHO and expressed a willingness to produce the parent, but objected to the untimeliness of the district's request and also advised of a scheduling conflict due to OATH's consolidation of a significant number of cases into a 10-day period (IHO Ex. III at p. 1).  While the IHO acknowledged the short notice of the subpoena, he did not address the advocate's objection to the untimeliness of the district's request for a subpoena, nor the scheduling conflict presented by the advocate, opting instead to require the parties to "confer with your clients and let us know when they can appear" (id.).  The hearing record does not indicate that any further communication was had between the parties and the IHO prior to the commencement of the hearing on February 25, 2024 (see IHO Exs. I-V).

At the impartial hearing, the parent's advocate again expressed her concern with the expedited nature of the subpoena and requested clarification as to its scope (Tr. pp. 4-6).  The IHO declined to address the advocate's objection and opted to compel the parent to appear on the basis that he had previously issued a subpoena the day before (Tr. p. 7).  The parent's advocate again requested clarification as to the scope of the subpoena at which time the IHO advised he would not be limiting the scope of questions and if the parent was not produced, as directed, he would dismiss the matter (id. p. 8).  It is at this point that the parent's advocate requested to withdraw the matter without prejudice to which the district requested the matter be dismissed with prejudice as the matter had been "listed for a very long time" (id.).[5]  The IHO did not hear any further discussion and advised the parties that he would address the withdrawal and request to dismiss the matter with prejudice in his written decision (id. p. 9).

Ultimately, the IHO opted to dismiss the matter with prejudice citing the parent's advocate's conduct during the hearing as the primary reason (IHO Decision at p. 2).  Courts have held that a dismissal with prejudice based on a party's failure to comply with the directive of an IHO should generally be reserved for extreme cases (see Edward S. v. W. Noble School Corp., 2014 WL 1319358, at *8, *12 [N.D. Ind. Mar. 31, 2014] ["Dismissal is a harsh sanction, especially when the issue is the fair and appropriate education of a child with disabilities"]; Nickerson-Reti 893 F. Supp. 2d at 293-94).  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]

While the parent's failure to comply with the signed subpoena could be considered a serious offense, given the issuance of the subpoena the morning prior to the scheduled hearing and the reasons given for the parent not appearing, the parent does not appear to have engaged in a pattern of conduct or in conduct so egregious as to warrant the maximum sanction of dismissal.  In reviewing the record before me, I note that the IHO issued a subpoena based on a request that did not comport with OATH's own omnibus order and would therefore be considered untimely.  The advocate notified the IHO immediately after the issuance of the subpoena, however, the hearing record indicates the issue went unaddressed by the IHO both prior to and during the impartial hearing (Tr. pp 5-9; see IHO Ex. IV).  While the IHO is afforded broad discretion, one can easily surmise that the omnibus timelines are in place to ensure appropriate notice to the parties such that they are not blindsided by last minute requests as happened here.  Thus, the IHO's actions in abruptly issuing a subpoena the day before a due process hearing based on an untimely request gives rise to the notion that this is not an "extreme case" warranting such a drastic disposition as a dismissal with prejudice.  While the issue of limited resources and the dictates of fairness may support a dismissal with prejudice where a party has shown a pattern of dilatory conduct or disregard for an IHO's directives, a dismissal with prejudice at the first instance of noncompliance by a party, without  more than what has been presented here, which amounts to the IHO granting an untimely request for a subpoena by the district with inexplicably short notice for the parent to appear, reasons for the nonappearance being disregarded without adequate explanation, an unsubstantiated allegations of "grave concern" by the district, and a district objection to the request for a withdrawal based solely on the length of time the matter had been pending, is an abuse of discretion that deprived the parents the due process contemplated by the above regulations.

 Accordingly, the IHO's dismissal of this matter with prejudice must be vacated and the matter is instead marked as dismissed without prejudice.

VII. Conclusion

Having determined that the IHO erred by dismissing this case without a full hearing on the merits, the IHO's order is hereby vacated and the matter is marked as dismissed without prejudice.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO decision dated March 5, 2025, is modified by reversing that portion which dismissed the due process complaint notice with prejudice, and the matter is instead dismissed without prejudice.