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 2024-25 school year, with prejudice. The appeal must be sustained.

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

Given the procedural posture of this matter—namely that it was dismissed 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 and educational history of the student in this matter is limited to the procedural history including the parent's filing of the due process complaint notice, the IHO's dismissal of the due process complaint notice with prejudice, and exhibits entered into evidence by the IHO (see IHO Exs. I-VII).

  According to the February 5, 2025 due process complaint notice filed by the parent in this matter, a CSE convened on March 18, 2024 and recommended that the student be placed in a 12:1+1 special class and receive one 30-minute session per week of individual counseling and three 30-minute sessions per week of individual occupational therapy (OT) (Due Process Compl. Not. at p. 1). The parent indicated that the district also recommended a behavioral plan for the student (id.). Disagreeing with the district's recommended program, the parent enrolled the student in Stars of Israel for the 2024-25 school year (id. at p. 2). 

On September 26, 2024, the parent filed a due process complaint notice that was given the case number 286441 which will be referred to as due process complaint number 286441 (IHO Decision at p. 1). 

In a due process complaint notice dated February 5, 2025, which was given IHO case number 291752 and will be referenced in this decision as the February 2025 due process complaint notice, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see Due Process Compl. Not. at p. 1; IHO Decision at p. 1).  In the February 2025 due process complaint notice, the parent argued that the student needed a full-time extended school year special education program and that the March 2024 CSE failed to recommend an adequate program for the student (Due Process Compl. Not. at p. 1). The parent asserted that the student had educational, emotional, and social needs that necessitated a full-time extended school year program in a special class of up to twelve students, one teacher, and one teaching assistant (id.).  The parent asserted that she notified the district of her rejection of the March 2024 IEP and the student's need for an appropriate special education class via letters dated June 21, 2024 and September 1, 2024 (id. at p. 2).  The parent stated that she placed the student in Stars of Israel for the 2024-25 school year and was seeking an order directing the district to directly fund the student's tuition at Stars of Israel (id.).

The matter was assigned to an IHO with the Office of Administrative Trials and Hearings (OATH).  According to the IHO, the same dispute was the subject of a prior due process complaint notice filed on September 26, 2024 (IHO Decision at p. 1).  According to the limited information available in the hearing record, on December 2, 2024, the parent's representative requested an adjournment of the hearing in the prior matter, which was scheduled for December 9, 2024, and , in the alternative, requested that the matter be withdrawn without prejudice (IHO Ex. I). According to the IHO decision in this matter, the IHO declined to adjourn the prior matter "and processed [p]arent's withdrawal request" (IHO Decision at p. 1).

On February 5, 2025, after being assigned to this matter, the IHO emailed the parties information regarding "the next steps for this case" (IHO Ex. II at p. 1).  In the February 5, 2025 email, the IHO noted: "[g]iven that this is a refiled matter, I am scheduling the matter for a [d]ue [p]rocess [h]earing (DPH) on the merits, to be held on March 11, 2025" and that "as this is a refile of a matter that was previously withdrawn, if this matter is to be withdrawn as well, I will hear from the [p]arties regarding whether any such withdrawal shall be with our without prejudice" (id.). 

On March 4, 2025, the district emailed the IHO and the parent's attorney the district's disclosure for the case (IHO Decision at p. 2; IHO Ex. III).  The district asked if the parent would be appearing as a witness, because the district had some questions to ask of the parent, and that if the parent were not appearing, the district indicated it would submit a subpoena for the parent to appear (id.). The parent's attorney replied on the same date, March 4, 2025, requesting withdrawal of the matter without prejudice because the impartial hearing had not yet commenced (IHO Ex. IV). The IHO replied on March 4, 2025, notifying the parent that this was "the second time [p]aren’t has made such a request" and, in his February 5, 2025 introductory email, the IHO notified the parties that "if this matter is to be withdrawn as well, [the IHO] w[ould] hear from the [p]arties regarding whether any such withdrawal shall be with or without prejudice" (IHO Ex. V).  The IHO asked the district to "please provide your position whether this withdrawal shall be with or without prejudice" (id.). The district replied that it was its position "that any dismissal of this case should be with prejudice" (IHO Ex. VI). The district noted that this was the second time the parent had withdrawn the case within a three-month period and further noted that the parent's attorney "did not request withdrawal of the case until after the [district] submitted document[ation] and asked if the parent would be present at the hearing" (id.).  The district stated that repeated withdrawals were "a significant waste of the judicial economy for all parties involved" and that the district would be prejudiced by a withdrawal without prejudice as it had disclosed its evidence to the parent's attorney (id.).  The parent's attorney replied to the district's email on the same day, March 4, 2024 and asserted that State "Regulations do not preclude withdrawing a case a second time" and the "[d]istrict did not provide any citation that show[ed] a [p]arent c[ould] not withdraw without prejudice a second time" (id.). The parent contended that the case must be withdrawn without prejudice (id.).

The IHO subsequently issued a written order of dismissal dated March 7, 2025 (IHO Decision). The IHO noted in his decision that the February 2025 due process complaint notice  was a re-file of the due process complaint notice in the prior matter (id. at p. 1). The IHO referenced his February 5, 2025 email and the March 4, 2025 email exchanges between the parties, noting that the hearing on the merits had been scheduled for March 11, 2025 (id.).  The IHO emphasized that "[a]fter considering both [p]arties' positions, [he] ha[d] decided against processing [p]arent's request to withdraw the matter without prejudice and w[ould] instead dismiss the matter with prejudice" (id. at p. 3).  The IHO's rationale for issuing the withdrawal with prejudice focused on the timing of the withdrawal request and the parent having previously filed and withdrew the prior matter (id.).  The IHO noted that the parent had twice obtained exhibits from the district, she withdrew her cases without having disclosed exhibits, and the request for withdrawal occurred after the district requested that the parent testify at the impartial hearing "suggesting [p]arent [r]epresentative's actions were made in an effort to subvert [d]istrict's ability to examine [p]arent at the [due process hearing]" (id.).  The IHO further emphasized that the parent had been put on notice that withdrawal may be with prejudice through the IHO's February 5, 2025 email (id. at pp. 1, 3).  Finally, the IHO noted that the law firm representing the parent had recently withdrawn seven other unrelated due process complaint notices, thereby "engag[ing] in a pattern of filing cases, with no apparent intent to litigate these matters" (id. at pp. 3-4). In conclusion, the IHO declined the parent's request for withdrawal without prejudice, noting concerns with the parent's intentions or willingness to pursue the matter and with the parent's attorney's pattern of conduct and dismissed the matter with prejudice (id. at p. 4).

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 argues that State regulations permit withdrawal without prejudice as long as it is requested before the impartial hearing, which is what occurred in this case. The parent further argues that the student in this case is unrelated to the students in the other due process complaint notices cited by the IHO as having been filed and withdrawn and that the IHO's findings are speculative and unfairly penalize the student. The parent requests that the IHO's decision be modified so that this matter is withdrawn without prejudice.

In an answer, the district asserts that the IHO properly dismissed the parent's due process complaint notice with prejudice based on the parent's history of filing duplicative due process complaint notices and argues that the parent's requested relief should be fully denied.[1]

V. Discussion

Here, 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 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]).

In this matter, on March 4, 2025, after the district submitted its proposed exhibits for the impartial hearing, but before March 11, 2025, the first date scheduled for the impartial hearing, the parent's attorney withdrew the February 2025 due process complaint notice (see IHO Decision at p. 2; IHO Ex. VII). Because the parent's withdrawal occurred prior to the first date of the impartial hearing, pursuant to State regulation, the IHO did not have discretion with respect to whether or not the withdrawal would be deemed with or without prejudice (8 NYCRR 200.5[j][6][i]).  Accordingly, the IHO erred in dismissing the February 2025 due process complaint notice with prejudice based on the parent's failure to prosecute.  As the parent withdrew the matter, remand is not appropriate and, instead, the appropriate recourse is to hold that the matter was withdrawn without prejudice as contemplated by State regulations.

As a final note, the IHO expressed valid concerns regarding judicial economy and the amount of effort expended in moving the two separate and now withdrawn proceedings toward an impartial hearing.[2]  It is not appropriate conduct to commence the same case time and time again only to withdraw it prior to the impartial hearing.  However, under current limitations imposed by State regulation, the option available to an IHO is consideration of a party's conduct during a due process proceeding as a factor to be weighed when fashioning equitable relief. If a party has engaged in a pattern or practice that results in unfair manipulation of the due process procedures, there is nothing that precludes the IHO from considering such facts when weighing equitable factors at the conclusion of the impartial hearing, so long as they are based on an adequate record and after providing the parties a reasonable opportunity to be heard.

VII. 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 order of the IHO, dated March 7, 2025, is modified so that the parent's February 5, 2025 due process complaint notice is deemed withdrawn without prejudice.