The Misrule of Law: How Albany Is Making Up Rules to Kill Your Special Ed Appeal.

A New York City family spent months fighting for their child's special education services. They lost at the hearing level. They appealed to Albany.

Albany threw out their case. For no good reason.

The parent signed the required affidavit on the 16th. The attorney filed the appeal on the 18th. The Office of State Review dismissed the entire case. Not because the argument was wrong. Not because the evidence was weak. Because of a two-day gap between two signatures.

There is no rule requiring them to be signed on the same day. A prior OSR decision says explicitly they don't have to be. None of that mattered.

"They are making up rules," said Marc Gottlieb, an attorney at Gottlieb & Wang who brought the case. "They are adding content to rules that is not in the rules, as written."

Background: When a New York City family believes the DOE has failed their child — denied a placement, refused to pay for therapy, ignored an IEP — they can file a formal complaint and get a hearing before an impartial hearing officer. That officer acts as a judge. They review the evidence, hear from both sides, and issue a decision.

If the family loses, they can appeal to the Office of State Review, a state agency in Albany that operates independently of New York City. A state review officer (SRO) is supposed to issue a decision within 30 days.

"If you don't get a ruling that you agree with, you can appeal," said Lloyd Donders, a special education attorney who has spent years tracking the system. Those appeals cover a wide range of losses — denied tuition reimbursement at a private school, denied ABA therapy, denied compensatory services, denied independent educational evaluations.

Most families never get here. An OSR appeal is not a first step or even a second one. It is what happens after a family has already spent months — sometimes years — in the system, lost at the hearing level, and decided they have enough left to keep fighting. My family has been navigating the NYC special education system for years. We have never appealed to OSR. Most families don't. The ones who do are already at the end of a very long road.

Appeals have exploded. In 2022 there were 178. In 2024 there were 647. In 2025, over 860. This year, according to Donders, the system is on pace to handle 1,400 appeals. "It's an insane amount," he said.

And Albany is increasingly dismissing those cases on procedural grounds that aren't in the rules rather than deciding them on the merits. The affidavit case is one example. There are others.

Gottlieb described hearing officers issuing what lawyers call sua sponte decisions — rulings based on issues that were never raised at the hearing, never argued by either side, never given to the parent a chance to respond to. A family spends months building a case. The hearing officer ignores the case entirely and rules against them on something nobody brought up.

"I find that this kid had too many unexcused absences, so I'm ruling against you," Gottlieb said, describing the pattern. The issue had never come up at the hearing. "It's a sucker punch decision."

His firm filed three appeals in its entire history before 2024. In the 2024-25 school year alone, it filed three.

A few years ago, New York City moved its special education hearings to OATH — the Office of Administrative Trials and Hearings — replacing independent hearing officers with full-time city employees. The official reason was efficiency. The backlog of cases had grown so severe that families were waiting months just to get a hearing date.

The move solved one problem and created another.

OATH's core job across city agencies is hearing cases brought by the city against people who break city rules — sanitation violations, building code infractions. In those cases, the city is the plaintiff. In special education cases, the parent is the plaintiff. The institutional culture runs in one direction, and it is not toward the family sitting across the table. Hearing officers, sources familiar with the system say, have lost procedural independence — pressure to process cases quickly, to follow top-down directives, to avoid rocking the boat — even as they retain the ability to rule on the substance of individual cases.

Some OATH hearing officers are excellent, Donders said. "Everyone knows who they are. They know the law, and if you prove your case, you can trust the decision." But others are a different story. After FOILing all hearing decisions going back to 2000, Donders found a small cluster of hearing officers with an extraordinary number of appealed decisions — 40, 50 in a short period — while most others had five or ten. "I recognize the names," he said. "There's no surprise on this list."

The appeals that do make it to Albany are waiting 10, 11, sometimes 12 months for a decision that is supposed to arrive in 30 days. "It's become a parlor game among lawyers," Donders said, "who has the oldest pending SRO appeal." He paused. "Gallows humor. Because it's that bad."

Gottlieb sees something larger driving the collapse. When the White House signals that rules don't apply to those in power, he argues, that permission structure filters down through every level of government. "Everybody in government is so fatigued and exhausted, but they're all safe," he said. "Clearly, the president doesn't care. They think, ‘why should I care? Nobody's going to fire me. Nobody's going to do anything about it. Let's just do what's easy for me.’ That's what's happening, I think."

The situation is worse than the numbers suggest.

In May, Donders made an observation that reframes the entire picture. "It's similar to what Yogi Berra used to say: 'Nobody goes to that restaurant anymore because it's too crowded,'" he said. "Except here, 'There are too many appeals, so no one appeals anymore.'"

He was speaking from experience. He recently received a decision awarding a fraction of the compensatory hours he had requested, with no legal basis. He could appeal and likely win. He chose not to.

If he appealed, his client — a child who needs ABA services — would go without them for over a year while the appeal wound through Albany. Instead, Donders chose not to appeal, got the child into services sooner, and filed a new case. One more case added to an already overwhelmed system. One more bad decision that goes uncorrected.

The appeals number, already alarming, is undercounting the crisis. Every case an attorney decides not to appeal is a bad hearing officer decision that stands, a child who loses services, and a new case piled onto the docket. The dysfunction is self-concealing — the backlog suppresses the very metric used to measure it.

For New York City families with a pending appeal, the picture is bleak.

"There's nothing you can do," Gottlieb said. "You just have to wait and see what happens."

If Albany dismisses the appeal, the next stop is federal court — the Southern District of New York. "And then the Southern District is going to start saying there are too many appeals," Gottlieb said, "and dismissing them." Once dismissed there, a family is out of options. Out of money. Out of time.

"These kids are getting kicked out of schools because these parents can't afford to keep up with the papers," Gottlieb said — meaning the legal filings, the motions, the responses to dismissals that pile up with every step of the appeals process in Albany.

Albany didn't misinterpret the rule. According to Gottlieb, they expanded it — adding requirements that don't exist in the text. "A totally violative expansion," he called it. A family's case, gone.

The Office of State Review did not respond to a request for comment.

Gottlieb is now appealing a dismissal to the Southern District of New York.

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