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 daughter 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 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 and the IHO's dismissal of the due process complaint notice with prejudice.

According to the parent, a CSE last convened on April 5, 2023 and developed an IESP for the student, which provided that the student would receive five periods of special education teacher support services (SETSS) per week, and no related services (Due Process Compl. Not. at p. 2).

According to the IHO, the same dispute was the subject of a previous due process complaint notice brought under a different impartial hearing number (original filing).[1]  The hearing record underlying the original filing is not part of the hearing record on appeal in the present matter; however, the IHO summarized the procedural history underlying the original filing and the parties do not dispute the IHO's summary (see IHO Decision at pp. 1-2; June 24, 2024 Tr. p. 3; Req. for Rev. at pp. 2-3; Answer at pp. 3-4).  The IHO recounted that the parent filed a due process complaint notice on September 7, 2023 alleging that the district failed to provide the student with equitable services for the 2023-24 school year (IHO Decision at p. 1; see June 24, 2024 Tr. p. 3).  The IHO recounted that the September 2023 due process complaint notice was treated as "this is a set of omnibus cases. We're going through the motions just to create a record for each case because I'm required to” (June 24, 2024 Tr. at p. 2).  Prior to the adjourned hearing date, the parent withdrew the original filing by email dated January 19, 2024 (IHO Decision at p. 2).

In a due process complaint notice dated March 27, 2024, which gave rise to the present matter, the parent, through her attorney, alleged that the district failed to provide the student with equitable services for the 2023-24 school year (Due Process Compl. Not.).  Specifically, the parent alleged that the April 5, 2023 CSE’s recommended program—“5 periods of SETTS and no related services”—was inadequate to meet the student’s needs for the 2023-24 school year (id. at p. 2).  The parent indicated that she would seek the services provided for in the March 19, 2018 CPSE IEP with the services being requested at an “enhanced rate” (id.).  For relief, the parent requested "[c]ontinuation" of the services set forth in the CPSE program "provided by Yeled V'Yalda . . . at an enhanced rate" and the provision of transportation (id.).  The parents also sought funding of the services pursuant to pendency (id.).[2]

The parent's March 27, 2024 due process complaint notice was assigned to the same IHO who presided over the previous proceeding.  According to the IHO and the parties, the March 2024 due process complaint notice was again treated with other cases in an "omnibus" fashion with seven other cases (IHO Decision at p. 2; Req. for Rev. at p. 3).  On May 1, 2024, the parties appeared for a prehearing conference, during which the parties discussed scheduling the hearing date for the merits of the case, including how long the hearings typically last when affidavit testimony is used (May 1, 2024 Tr. pp. 1-6).  Of further note, the district representative noted for the record that, unlike the parent’s assertion made in her due process complaint notice, the last IESP created for the student was January 18, 2023, and that  the district would be calling witnesses (id. at p. 3).  According to the IHO, on June 18, 2024, the parent's attorney sent an email stating she wanted to withdraw the matter and the IHO responded, stating that the parties would be required to appear, and the parent's attorney would be expected to explain why the withdrawal should not be deemed to be with prejudice (IHO Decision at pp. 2-3).

On June 24, 2024, the parties appeared before the IHO and discussed the parent's withdrawal of the March 2024 due process complaint notice (June 24, 2024 Tr. pp. 1-8).  The parent's attorney stated her view that State regulations permit a parent to withdraw a complaint before a hearing begins (June 24, 2024 Tr. pp. 4).  .  The parent's attorney noted that if the IHO was not inclined to allow the withdrawal to stand without prejudice, the student would not receive those services that the district already agreed were needed (June 24, 2024 Tr. p. 4).  The parent’s attorney also asserted that the creation of the IESP is an offer by the district, therefore the IHO should order the district to reimburse the parent at market rate for the services (id.).  The district's representative argued that, because it was "the third time" the matter was on the calendar for a hearing—referring to two scheduled dates arising from the prior proceeding in addition to the June 24, 2024 date in the present matter—this demonstrated "a failure to prosecute" and the parent had not alleged "exigent circumstances" to justify an adjournment (June 24, 2024 Tr. p. 5).

In an order dated July 1, 2024, the IHO dismissed the parent's March 2024 due process complaint notice with prejudice (IHO Decision).  Regarding the parent's argument that State regulations permit withdrawals, the IHO acknowledged the regulation but found that it did not allow parents "to do so at the expense of judicial economy," noting that she had "allotted almost 30 hours on her calendar over three hearing dates within an almost 10-month time span for parent's representative to have hearings on this batch of omnibus cases" (id. at p. 4).  The IHO was also not persuaded by the parent's attorney's argument that it was difficult to arrange affidavits for omnibus cases noting that the parent's attorney had 10 months to prepare and "did not have to refile the case when [she] did" if she was not prepared (id. at p. 5).  Thus, the IHO dismissed the matter with prejudice based on the parent's failure to prosecute (id.).  The IHO also denied the parent's request for an adjournment (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in dismissing the parent's March 2024 due process complaint notice with prejudice.

Initially, for purposes of completeness, I must note that the parent asserts on appeal that “the last and most recent educational placement created for [the] [s]tudent was that which was contained in an IESP dated February 1, 2023, which mandated the following services: Special Education Teacher Support Services ("SETSS"*), 3 periods per week, Speech (1x30x1), Speech (1x30 in a group), Occupational Therapy (2x30x1), Counseling (1x30x1), and Counseling (1x30 in a group)” (Req. for Rev. at p. 1).  This assertion, however, differs from the parent's March 2023 due process complaint notice which stated that the student’s last IESP was created in April 2023, mandated five hours of SETSS per week but did not recommend any related services (compare Due Process Compl. Not. at p. 2 with Req. for Review at p.1).  Due to the lack of a developed hearing record it is not possible to determine which IESP date is correct and, in any event, due to the nature of the appeal herein, the question need not be addressed at this juncture.

The parent argues that the IHO failed to give sufficient notice that a dismissal with prejudice was likely to result from a request to withdraw.  In addition, the parent notes that the IHO sua sponte raised the possibility that the parent's attempt to withdraw could be treated with prejudice in contravention of State regulation which provides that a withdrawal should be presumed to be without prejudice unless the other party requests otherwise and the parties have an opportunity to be heard.  The parent also argues that her conduct was not so egregious to require dismissal with prejudice.  The parent requests that the matter be remanded or that the dismissal of the matter be deemed without prejudice.

In its answer, the district responds to the parent's material allegations.  The district asserts that the parent’s actions in failing to appear for one hearing date and then withdrawing the first due process complaint in the prior proceeding as well as the withdrawal request in this proceeding, constitutes a "failure to prosecute," and the IHO was therefore justified in dismissing the due process complaint with prejudice.  The district also asserts that the IHO provided the parties with notice that dismissal with prejudice was an option, provided the parties an opportunity to be heard, and then properly dismissed the due process complaint with prejudice.  Accordingly, the district requests the parent’s request for review be dismissed.

V. Discussion

In this case several areas of concern arise as a result of the underlying proceedings.  First, the administrative record itself is lacking. The factual basis of the IHO's decision is the parent's prior conduct in both this proceeding and the prior proceeding; however, materials related to the prior due process proceeding and the parent's communication seeking to withdraw in that proceeding as well as this proceeding are unavailable because the IHO did not make them part of the administrative record in this proceeding.  On appeal, the parties, in their verified pleadings, agree that the parent withdrew the due process complaint notice via email on June 18, 2024, thus I will accept the parties' representations in this appeal.

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 case, the district asserts that IHO’s have broad authority to dismiss due process complaints with prejudice, particularly when the parent fails to prosecute, or the parent’s actions are so egregious as to allow dismissal.  As support, the district cites to Application of a Student with a Disability, Appeal No. 09-073.  However, at the time that State-level review was decided, State regulations did not contain explicit provisions that govern the procedures for when or how cases are withdrawn without prejudice or with prejudice and since that time 8 NYCRR 200.5(j)(6)(i) governing cases that may be withdrawn without prejudice was promulgated by the Regents which is now controlling.  The district's arguments are more advocacy in support of further amendment to State regulations in light of changing circumstances, but this forum is not the appropriate setting for such arguments.

The parties in this case agree that on June 18, 2024, after the May 1, 2024 prehearing conference but before the first date scheduled for the impartial hearing of June 24, 2024, the parent's attorney withdrew the due process complaint notice (see IHO Decision at pp. 2-3).  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 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's expressed valid concerns regarding judicial economy and the amount of effort expended in two separate proceedings to move the disputed issues toward an impartial hearing.[3]  The IHO's has a point insofar as it is not appropriate to commence the same case time and time again and then repeatedly withdraw it prior to the impartial hearing.  However, under current limitations imposed by State regulation, an available option is the 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 based upon an adequate record and after providing the parties a reasonable opportunity to be heard.[4]

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 order of the IHO, dated July 1, 2024, is vacated; and

IT IS FURTHER ORDERED that the parent's March 27, 2024 due process complaint notice is deemed withdrawn without prejudice.