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 decision of an impartial hearing officer (IHO) which terminated the parent's due process complaint notice 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 terminated with prejudice prior to an impartial hearing—there was no development of an evidentiary record regarding the student through testimony or exhibits entered into evidence.  Accordingly, the description of the facts is limited to the procedural history including the parent's filing of the due process complaint notice and the IHO's order of termination with prejudice.

In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Due Process Compl. Not. at pp. 2-3, 4).[1] Specifically, the parent asserted that a March 14, 2023 CSE's recommendation for three periods per week of special education teacher support services (SETSS) was insufficient to address the student's needs (id. at pp. 2-3).  The parent also contended that the CSE failed to timely convene and failed to recommend an appropriate program and placement for the student (id. at pp. 3-4).  The parent invoked the student's right to pendency and argued that the student's pendency services were based on the last agreed-upon program set forth in a March 10, 2022 Committee on Preschool Special Education (CPSE) IEP (id. at p. 2).  The parent alleged that due to the district's failure to recommend an appropriate placement for the student, the parent "[wa]s left with no choice but to implement the [CPSE IEP] independently and seek reimbursement from the [district]" (id. at p. 3).  As relief, the parent sought findings that the March 14, 2023 IESP "constitute[d] a denial of a FAPE for the 2023-24 school year," that the failure of the CSE to timely convene was a denial of a FAPE for the 2023-24 school year, that the district's failure to "recommend the continuation of [the CPSE IEP]" was a denial of a FAPE for the 2023-24 school year, and that "the failure by the [district] to recommend an appropriate placement or sufficient services for [the student wa]s a denial of a FAPE for the 2023-24 school year" (id. at p. 4).  The parent requested funding at a reasonable market rate for the services recommended by the March 10, 2022 CPSE for the 2023-24 school year (id.).  Lastly, the parent requested that "in the event that [the p]arent w[as] … unable to locate services providers that [the student wa]s entitled to under pendency, then an order that the [district] shall fund a bank of compensatory education equivalent to the missed services" (id.).

An IHO was appointed from the Office of Administrative Trials and Hearings (OATH) on February 19, 2025 (IHO Decision at p. 1).  An undated omnibus order was issued by another IHO that was applicable to this matter.  The parties convened before the IHO on March 3, 2025 (Tr. pp. 1-7).  Review of the transcript indicates that the IHO was presiding over multiple cases assigned to an omnibus docket (Tr. p. 3).  The transcript reflects that the IHO and the parties had "come back … [at] 10:51 a.m. … [for] the fifth case" (id.).  The IHO began by asking the parties to state their appearances and to indicate whether or not interpreter services were required (id.).  The parent's representative responded, "Sure thing.  No need of interpretation or accommodation," she then stated her name and the name of the law firm representing the parent in the matter, and stated that she was "requesting to withdraw without prejudice" (id.).  In response, the district's representative asked if the case was going to be withdrawn with prejudice because the district was "already [t]here.  The district [wa]s prepared for the hearing and the last minute withdrawal" (Tr. p. 4).

The parent's representative apologized for the request occurring on the day of the hearing, but argued that "we are entitled to request to withdraw without prejudice before the hearing [ha]s commenced.  And as the hearing [ha]s not yet commenced, we are requesting to withdraw … without prejudice at this time" (Tr. p. 4).  The district argued that the hearing had commenced and that the matter should be withdrawn with prejudice (id.).  The parent's representative asserted that the impartial hearing had not commenced and stated that an email requesting to withdraw without prejudice had been sent to the IHO and the district's representative at 9:30 a.m. (Tr. pp. 4-5).  The IHO noted that the "batch of omnibus cases [were] scheduled for" 9:00 a.m. (Tr. p. 5).  The district argued that the hearing commenced at 9:00 a.m., while also acknowledging that "omnibus [wa]s a bit different than individual hearings, but there's not a specific hearing time for each case, and we do need to be prepared at 9:00 a.m., for all of the cases scheduled for omnibus" (id.).  The IHO adjourned the matter for four minutes, instructing the parties to return at 11:00 a.m. for the next case (Tr. p. 6).

On March 3, 2025, the IHO issued an order of termination (IHO Decision at p. 1).  The IHO found that a hearing was held on March 3, 2025, and that the parent notified the district and the IHO at the hearing that the due process complaint notice was being withdrawn without prejudice (id.).  The IHO found that the district did not object to the "withdrawal being after the hearing had begun but argued that the withdrawal should be with prejudice" as the district had appeared at the hearing, was prepared to move forward, and the hearing had commenced (id.).  The IHO ordered that the July 15, 2024 due process complaint notice "be withdrawn with prejudice given that petitioner had months to withdraw the case prior to the start of the hearing and given that [the district] would be prejudiced if the withdrawal were permitted to be without prejudice" (id.).

IV. Appeal for State-Level Review

The parent appeals and asserts that the IHO erred in terminating the parent's due process complaint notice with prejudice.  The parent argues that she did not engage in a pattern of egregious conduct that would warrant a dismissal with prejudice.  The parent asserts that the matter should be heard on the merits and that the omnibus order did not indicate that dismissal with prejudice was a potential sanction for the failure to appear.  The parent also contends that the IHO exhibited bias against her.[2]  As relief, the parent requests that the IHO's order of termination be modified to state that the due process complaint notice is withdrawn without prejudice.

In an answer, the district responds with specific denials and argues that the IHO's order should be affirmed.  The district further asserts that the IHO did not exhibit bias toward the parent during the proceedings.

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]).[3]  "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.).[4]  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

A. Withdrawal of the Due Process Complaint Notice

The parent argues that the IHO erred in determining that the impartial hearing had commenced prior to her request to withdraw the due process complaint notice.  Review of the hearing record supports the parent's position.

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 prior to the first date of an impartial 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 upon 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]).

As detailed above, the transcript reflects that the parent notified the IHO and the district by email at 9:30 a.m. prior to the IHO calling the parties back on the hearing record at 10:51 a.m. to preside over this matter (Tr. p. 3). Immediately following her introduction, the parent's attorney stated that she was "requesting to withdraw without prejudice" (id.).

The transcript indicates that the district's attorney argued that the impartial hearing had commenced, however, in its statement of material facts asserted in its answer, the district states that "the impartial hearing was held on March 3, 2025. Both the [district] and [c]ounsel for the [p]arent appeared at th[e] time, and the [p]etitioner[] notified the IHO and the [district] that the [due process complaint notice] was being withdrawn without prejudice before the hearing commenced" (Answer ¶ 2; see Tr. p. 4).  The district further stated that it "requested that the withdrawal of the case be with prejudice because the [district] was prepared to proceed with the hearing, and because the request for withdrawal was made last minute" (id.).

As the parties agree that the impartial hearing had not commenced, State regulations clearly state that if a party withdraws the due process complaint notice prior to the first date of an impartial hearing, the withdrawal shall be without prejudice unless the parties otherwise agree (8 NYCRR 200.5[j][6][i]).  Based on the foregoing, the IHO erred in issuing an order of termination with prejudice.

B. IHO Bias

With respect to the parent's allegations of IHO bias, to the extent that the parent disagrees with the conclusions reached by the IHO, such disagreement does not provide a basis for finding actual or apparent bias by the IHO (see Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 [2d Cir. 2009] [finding that "[g]enerally, claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a reasonable basis for questioning a judge's impartiality"]; see also Liteky v. United States, 510 U.S. 540, 555 [1994] [identifying that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion"]; Application of a Student with a Disability, Appeal No. 13-083).

It is well settled that an IHO must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 12-066).  Moreover, an IHO, like a judge, must be patient, dignified, and courteous in dealings with litigants and others with whom the IHO interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, according each party the right to be heard, and shall not, by words or conduct, manifest bias or prejudice (e.g., Application of a Student with a Disability, Appeal No. 12-064).  An IHO may not be an employee of the district that is involved in the education or care of the child, may not have any personal or professional interest that conflicts with the IHO's objectivity, must be knowledgeable of the provisions of the IDEA and State and federal regulations and the legal interpretations of the IDEA and its implementing regulations, and must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice (20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).

Here, the parent describes the IHO's conduct in other matters and fails to assert a single instance of impropriety related to this matter.  Such speculative claims without any further information are insufficient to support a finding that the IHO exhibited bias in this matter.

VII. Conclusion

In summary, the hearing record does not support a finding that the IHO engaged in any bias toward the parent, however, the IHO erred in issuing an order of termination with prejudice.  The parent's due process complaint notice shall be withdrawn without prejudice.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision, dated March 3, 2025, is modified by reversing those portions which found that the impartial hearing had commenced prior to the parent's request to withdraw the due process complaint notice, and which ordered that the due process complaint notice be withdrawn with prejudice.