STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-116
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Thomas W. MacLeod, Esq.
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 denied her request that respondent (the district) fund the costs of her son's private special education services delivered by Yeled v'Yalda ECC (Yeled) for the 2023-24 school year. The appeal must be dismissed.
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 disposition of this matter on procedural grounds, a detailed recitation of the facts relating to the student's educational history is not necessary. Briefly, a CSE convened on May 12, 2022 to develop an IESP to be implemented on May 26, 2022 (Parent Ex. C at pp. 1, 10). Finding the student eligible for special education as a student with a learning disability, the May 2022 CSE recommended that the student receive five periods per week of direct group special education teacher support services (SETSS) to be delivered in Yiddish and in a separate location (id.).[1]
By letter dated May 30, 2023, the parent, through her attorney, informed the district of her residence and school enrollment and requested all services and special education programming to which the student was entitled to be provided by the district (Parent Ex. E at p. 2).
On August 8, 2023, the parent entered into a contract with Yeled for "[s]pecial [e]ducation and/or [r]elated [s]ervices" from September 1, 2023 through June 30, 2024 (Parent Ex. H).[2] The parent agreed to seek payment from the district for the services rendered by Yeled and acknowledged "that it [wa]s fully and completely the parents' responsibility to pay [Yeled] for the entirety of services at the rate of" $198 per hour for special education services and $250 for related services for any hours of services provided to the student for which Yeled had not been compensated (id.). The contract further indicated that Yeled "would do [its] best to provide [the student] with all the services [he was] entitled to" (id.).
By 10-day notice letter dated September 3, 2023, the parent, through her attorney, advised the district that for the 2023-24 school year she was unable to locate providers at the district's "standard rate" and that she had "no choice" but to implement the IESP on her own and seek reimbursement or direct payment from the district (Parent Ex. D at p. 2).
A. Due Process Complaint Notice
In an amended due process complaint notice dated July 1, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. K).[3] The parent alleged that the May 2022 IESP was "outdated and expired," and that the delay in developing a new IESP for the 2023-24 school year constituted a denial of FAPE (id. at p. 2). The parent was "concerned regarding the implementation of the" May 2022 IESP for the 2023-24 school year and alleged that she was unable to locate a provider on her own and also that she had located appropriate service providers independently for the 2023-24 school year (id.). The parent further argued that without supports, the parental mainstream placement was untenable (id.). The parent asserted that pendency lay in an April 20, 2023 unappealed IHO decision and consisted of five periods per week of direct group SETSS delivered in Yiddish (id.).
As relief, the parent sought findings that the failure of the district to convene and recommend placement or services was a denial of a FAPE for the 2023-24 school year, and that the district's failure to implement its recommendations was a denial of a FAPE for the 2023-24 school year (Parent Ex. K at p. 3). The parent further requested, among other things, that the district "fund the program outlined" in an April 20, 2023 unappealed IHO decision for the 2023-24 school year at the provider's contracted rate (id.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on September 16, 2024 (Tr. pp. 12-64).[4]
In a decision dated January 10, 2025, the IHO found that the parent presented sufficient evidence that she had requested equitable services for the 2023-24 school year, and that the district failed to demonstrate that it implemented the services recommended on the May 2022 IESP (IHO Decision at p. 8). As a result, the IHO determined that the district failed to meet its burden to show that it implemented the services in accordance with the student's IESP (id.). The IHO then reviewed a February 2024 SETSS progress report and determined that the parent's unilaterally obtained SETSS were not "specifically designed to meet [the s]tudent's unique needs" (id. at p. 9). The IHO found that the SETSS progress report summarized the student's present levels of functioning and described the student's academic abilities and difficulties (id.). The IHO noted that the progress report also listed the modes of intervention utilized with the student (id.). The IHO also found that the SETSS progress report failed to describe why the specific modes of intervention were selected the student or how the student was responding to the interventions (id.). In addition, the IHO stated that the progress report failed to explain how the modes of intervention were addressing the student's specific deficits (id.). Consequently, the IHO determined that the parent did not meet her burden of demonstrating that the unilaterally obtained SETSS were appropriate for the student.
For completeness of the hearing record, the IHO next discussed equitable considerations (IHO Decision at pp. 9-10). The IHO found that the parent attended the May 2022 CSE meeting and requested equitable services on or before June 1, 2023, but did not send a 10-day notice of unilateral services from Yeled until September 2, 2024 (id. at p. 10). For the failure to send a timely 10-day notice letter, the IHO stated that she would have reduced the parent's rate of funding by 10 percent, had the parent met her burden to show that the services from Yeled were appropriate (id.). Based on the foregoing, the IHO denied the parent's request for funding of her unilaterally obtained SETSS for the 2023-24 school year.
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding that the parent did not meet her burden of demonstrating the appropriateness of her unilaterally obtained SETSS. The parent further asserts that the IHO incorrectly applied the Burlington/Carter standard and argues that the parent was not required why explain why "modes of intervention were selected" which was an "over expansion" of the parent's burden. The parent also contends that although the IHO erred in expanding the parent's burden of proof, the parent presented evidence showing how the provider's methods were assisting the student in the general education classroom. Lastly, the parent argues that the IHO's alternative finding that a reduction in rate was unjustified. As relief, the parent requests direct funding for the parent's unilaterally obtained SETSS for the 2023-24 school year at the rate of $198 per hour. In the alternative, the parent requests a bank of compensatory hours for all "missed services."[5]
In an answer, the district asserts that the parent's request for review is untimely and requests that the parent's appeal be dismissed. Additionally, the district denies the parent's material allegations and argues that the IHO correctly determined that the parent did not meet her burden of demonstrating the appropriateness of her unilaterally obtained SETSS and that equitable considerations warranted a 10 percent reduction in the rate.
The parent interposed a reply to the district's answer.
V. Discussion — Timeliness of Request for Review
As a threshold matter, it must be determined whether or not the parent's appeal should be dismissed for failing to comply with State regulations governing appeals before the Office of State Review.
An appeal from an IHO's decision to an SRO must be initiated by timely personal service of a notice of request for review and a verified request for review and other supporting documents upon a respondent (8 NYCRR 279.4[a]-[c]). A request for review must be personally served within 40 days after the date of the IHO's decision to be reviewed (id.). If the last day for service of any pleading or paper falls on a Saturday or Sunday, service may be made on the following Monday; if the last day for such service falls on a legal holiday, service may be made on the following business day (8 NYCRR 279.11[b]). State regulation provides an SRO with the authority to dismiss sua sponte an untimely request for review (8 NYCRR 279.13; see e.g., Application of the Board of Educ., Appeal No. 17-100 [dismissing a district's appeal for failure to timely effectuate personal service on the parent]; Application of a Student with a Disability, Appeal No. 16-014 [dismissing a parent's appeal for failure to effectuate service in a timely manner]).
Here, the IHO's decision was dated January 10, 2025, thus the parent had until February 19, 2025, 40 days after the date of the IHO's decision, to personally serve the district with a verified request for review (see IHO Decision; 8 NYCRR 279.4[a]). On February 21, 2025 the parent filed the following documents with the Office of State Review: a notice of intention to seek review dated February 4, 2025; an affidavit of electronic service sworn to on February 5, 2025, indicating that the notice of intent to seek review was served on February, 4, 2025, a notice of request for review dated February 21, 2025; a request for review dated February 18, 2025; an affidavit of verification sworn to on February 19, 2025; and an affidavit of electronic service sworn to on February 21, 2025, indicating that the request for review was served on February 21, 2025.
An SRO may, in his or her sole discretion, excuse a failure to timely seek review within the 40-day timeline for good cause shown (8 NYCRR 279.13). The reasons for the failure must be set forth in the request for review (id.). "Good cause for late filing would be something like postal service error, or, in other words, an event that the filing party had no control over" (Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *5 [N.D.N.Y. Dec. 19, 2006]; see T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 441 [W.D.N.Y. 2012] [finding that "attorney error or computer difficulties do not comprise good cause"]).
The parent's request for review did not acknowledge that the request for review was not timely served and did not specify any cause for the late filing as required by State regulation which specifically states that the reason for a late filing "shall be set forth in the request for review" (8 NYCRR 279.13). In a reply, the parent concedes that there was a mistaken impression that the request for review was timely, and the parent was unaware that the request for review was untimely until she received the district's answer. The parent further asserted that the untimely request for review was the result of a law office clerical error in calculating when the request for review was due to be served. As part of the explanation, the parent's attorney points the finger at OATH, indicating that the date an IHO decision is rendered and the date the parent receives an IHO decision is almost always the same. However, the law is clear that the time period for appealing an IHO decision begins to run based upon the date of the IHO's decision and State regulations regarding timeliness do not rely upon the date of a party's receipt of an IHO decision—or the date the IHO transmitted the decision by e-mail—for purposes of calculating the timelines for serving a request for review (see 8 NYCRR 279.4[a]; Mt. Vernon City Sch. Dist. v. R.N., 2019 WL 169380 [Sup. Ct. Westchester Cnty. Jan. 9, 2019] [upholding the dismissal of an SRO appeal as untimely, as calculation of the 40-day time period runs from the date of an IHO decision, not from date of receipt via email or regular mail], aff'd 188 A.D.3d 889 [2d Dep't 2020]).
Even if this reason was set forth in the request for review, it does not explain why the parent did not review the date the IHO's decision was issued and instead relied solely on the date of the transmission from OATH, nor does it amount to "an event that the filing party had no control over" (see B.C. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 367 [S.D.N.Y. 2013]; Application of a Student with a Disability, Appeal No. 18-021 ["Generally, courts are unwilling to accept law office failure as a reasonable excuse absent a "'detailed and credible explanation of the default at issue'"], citing Scholem v. Acadia Realty Ltd. Partnership, 144 A.D.3d 1012, 1013 [2d Dep't 2016]; see also Application of a Student with a Disability, Appeal No. 24-425 [finding that parent's explanation relating to office internet difficulties did not constitute sufficient good cause]).
In the reply, the parent also asserts that the untimely appeal should be excused because the district was not prejudiced by the delay. However, lack of prejudice to the district is not a reason why the verified request for review was not timely served (see B.C., 971 F. Supp. 2d at 367 [S.D.N.Y. 2013] [indicating that, while an SRO might in his or her discretion "consider whether a party has suffered prejudice, the regulations require a showing of good cause to excuse untimeliness"]).
In this case, the district is correct that the appeal should be dismissed. Because the parent failed to properly initiate this appeal by effectuating timely service upon the district, and there is no good cause asserted in the parent's request for review, in an exercise of my discretion, the appeal is dismissed (8 NYCRR 279.13; see Avaras v. Clarkstown Cent. Sch. Dist., 2019 WL 4600870, at *11 [S.D.N.Y. Sept. 21, 2019] [upholding SRO's decision to dismiss request for review as untimely for being served nine hours late notwithstanding proffered reason of process server's error]; New York City Dep't of Educ. v. S.H., 2014 WL 572583, at *5-*7 [S.D.N.Y. Jan. 22, 2014] [upholding SRO's decision to reject petition as untimely for being served one day late]; B.C., 971 F. Supp. 2d at 365-67; T.W., 891 F. Supp. 2d at 440-41; Kelly v. Saratoga Springs City Sch. Dist., 2009 WL 3163146, at *4-*5 [Sept. 25, 2009] [upholding dismissal of a petition served three days late]; Keramaty v. Arlington Cent. Sch. Dist., 05-CV-0006, at *39-*41 [S.D.N.Y. Jan. 25, 2006] [upholding dismissal of a petition served one day late], adopted [S.D.N.Y. Feb. 28, 2006]; Application of a Student with a Disability, Appeal No. 18-046 [dismissing request for review for being served one day late]).
VII. Conclusion
Having exercised my discretion to dismiss the request for review because the parent failed to timely initiate the appeal pursuant to State regulations, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with a learning disability is not in dispute (see 34 CFR 300.8[c][10]; 8 NYCRR 200.1[zz][6]).
[2] Yeled v'Yalda is a State-approved provider of Special Education Itinerant Services (often referred to as SEIT) to preschool students with disabilities (see Educ. Law § 4410[9]; 8 NYCRR 200.1[nn]); however, Yeled has not been approved by the Commissioner of Education as a school with which districts may contract to instruct school-aged students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[3] The parent filed an initial due process complaint notice on June 17, 2024 (Parent Ex. A; Dist. Ex. 1).
[4] A prehearing conference was held on August 12, 2024 (Tr. pp. 1-11).
[5] After the 2023-24 school year concluded and the impartial hearing was being conducted, a "Supervision Leader" from Yeled testified that the student received five hours per week of SETSS on an individual basis for the 2023-24 school year (Parent Ex. J at ¶¶8, 11; Tr. pp. 30-32) and, although the parent elected a self-help remedy in obtaining services from Yeled, the parent does not otherwise explain what services were purportedly "missed" during the 2023-24 school year.