Establishing a Routine Procedure May Assist in Legal Challenges

Parents everywhere are relieved to have their children back into a regular school schedule, but routines aren’t just beneficial for students. A recent decision of a New York State Review Officer (SRO) suggests schools would be well-served to put routines into place to assist in legal challenges regarding the mailing and receipt of required documents.

As a refresher, a legal challenge to a school district’s actions related to the education of a student with a disability begins with an impartial hearing. After an impartial hearing officer (IHO) renders a decision, the decision may be appealed to an SRO, who reviews the IHO’s decision and issues their own decision. Although these decisions often do not have broader applicability beyond special education, Decision 21-146 offers such lessons.

In Decision 21-146, one of the issues in the appeal was whether the family received a copy of the IEP developed by the New York City School District. The SRO outlined a high bar for petitioners to overcome regarding mailing and receipt: New York law provides a presumption of mailing by the sender and receipt by the recipient “where there is proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” Decision 21-46 (citing Nassau Ins. Co. v Murray, 46 N.Y.2d 828, 829 (1978)). When proof of a standard practice is established, as long as “adequate testimony by one with personal knowledge of the regular course of business” is submitted, it is not even necessary for the sender to provide testimony from the actual employee in charge of mailing. E.g., T.C. v. N.Y.C. Dep’t. of Educ., 2016 WL 1261137, at *9 (S.D.N.Y. 2016).

To overcome this presumption, New York courts—and, following suit in Decision 21-146, the Office of State Review—require an addressee to “show more than the mere denial of receipt.” Instead, they must demonstrate a “routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed.” Id. Although a high bar, the facts underlying Decision 21-146 demonstrated it was not impossible to overcome: not only did the City School District fail to give evidence of its routine practice, the family also suggested that COVID-19 disrupted the District’s operations. Taken together, the SRO found the family overcame the presumption of mailing and receipt sufficient to prove it did not receive the IEP as required by law.

This decision demonstrates the importance of the seemingly mundane: districts should consider setting standard procedures for routine matters such as providing prior written notice and IEPs for special education, or issuing annual notices required by law. If you would like to discuss best practices for either of these topics or have questions about required notices, please contact us.