STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-203
Application of a STUDENT WITH A DISABILITY, by her 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
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 cost of her daughter's private services delivered by Children's Learning Ladders for the 2024-25 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
The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail.
On April 4, 2017, an initial CSE convened, found the student eligible for school-age special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of September 7, 2017 (Parent Ex. C at p. 1). The April 2017 CSE recommended that the student receive seven periods per week of special education teacher support services (SETSS) in a group setting; one 30-minute session per week of individual speech-language therapy; and one 30-minute session per week of group speech-language therapy (id. at pp. 1, 6).
Several years later, on November 14, 2022, a CSE convened, determined the student continued to be eligible for special education as a student with a speech or language impairment, and developed the student's IESP which was projected to be implemented that same day (Dist. Exs. 2 at p. 1; 4 at p. 1).[1] The November 2022 CSE recommended that the student receive four periods per week of SETSS in a group setting; two 30-minute sessions per week of individual speech-language therapy; one 30-minute sessions per week of group counseling; and testing accommodations (Dist. Exs. 2 at pp. 1, 9-10; 4 at p. 1).
According to the hearing record, for the 2022-23 school year, the parties agreed to the student's receipt of SETSS and speech-language therapy at specified hourly rates (Parent Ex. D).
Turning to the 2024-25 school year at issue, according to hearing record, the student began receiving SETSS from Children's Learning Ladders, a private educational agency (see Tr. pp. 68-69, 74-77; Parent Ex. F ¶¶ 1-2).
A. Due Process Complaint Notice
In a due process complaint notice filed on September 24, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A at pp. 1, 6). First, the parent alleged that the district failed to develop an updated IESP for the student for the 2024-25 school year and also failed to implement services recommended in prior IESPs for the 2024-25 school year (id. at p. 2). The parent further alleged that the most recent IESP, developed in November 2022, was inconsistent with the student's needs (id.). More specifically, the parent alleged that the November 2022 IESP reduced the student's level of services from seven hours of SETSS per week to four hours of SETSS per week, a change which, according to the parent, "fail[ed] to address [the student's] challenges in working memory, processing speed, and attention, as identified in the neuropsychological evaluation conducted on [July 12, 2022]" (id.). Finally, the parent alleged the need for an hour of indirect SETSS each week to enable collaboration between the student's SETSS provider and the student's regular education teacher (id.). The parent requested pendency based on the IESP dated September 17, 2027 (id. at pp. 3, 5). As relief, the parent requested a new IESP for the 2024-25 school year to restore the student's level of services to seven hours of SETSS per week and includes an hour of indirect SETSS (id. at pp. 2-3). The parent "reserve[d] the right to seek reimbursement for private services" "[i]f the [district] fail[ed] to provide services in a timely manner" (id. at p. 3).
B. Impartial Hearing and Impartial Hearing Officer Decision
On December 11, 2024, an IHO appointed by the Office of Administrative Trials and Hearings (OATH) issued an order directing the district to provide pendency services to the student in accordance with the April 2017 IESP (Tr. pp. 1-3; IHO Ex. I at pp. 1-2, 6).[2]
In a motion dated December 16, 2024, the district requested dismissal of the parent's claims based on lack of subject matter jurisdiction (IHO Ex. IV at pp. 1-5). The parent submitted a memorandum dated December 18, 2024, opposing the district's motion to dismiss (IHO Ex. V at p. 1).
After two pre-hearing conferences, an impartial hearing convened on January 30, 2025 and concluded the same day (see Tr. pp. 1-106). During the hearing, both parties offered exhibits, most of which the IHO admitted into evidence (see Tr. pp. 30-31, 37-40; Parent Exs. A-G; Dist. Exs. 2-8).[3], [4] The parent's exhibits included testimony by affidavit from the administrator of Children's Learning Ladders and the student's SETSS provider, each of whom appeared for cross-examination by the district (see Tr. pp. 10, 13-14; 41-58; 71-85; Parent Exs. F; G).[5] The district also obtained testimony from the parent pursuant to a subpoena (see Tr. pp. 59-71; IHO Ex. VI).
In a decision dated February 27, 2025, the IHO denied the district's motion to dismiss (IHO Decision at pp. 10-11). The IHO found that the district met its burden to show that the November 2022 IESP, including the recommendation to reduce the student's level of services to four hours of SETSS per week, offered a FAPE (id. at pp. 3, 6).[6] Nevertheless, the IHO found that the district presented no "evidence that it supplied [the] [s]tudent with a SETSS provider for the 2024-2025 school year" (id. at p. 3). Thus, according to the IHO, the district failed to prove that it provided the student with a FAPE on an equitable basis for the 2024-25 school year (id. at pp. 1, 6).
The IHO next addressed whether the SETSS delivered by Children's Learning Ladders during the 2024-25 school year were appropriate for the student and determined that the parent did not meet her burden in that regard (see IHO Decision at pp. 6-8).[7] The IHO therefore denied the parent's request for funding of cost of the SETSS delivered by Children's Learning Ladders, including indirect SETSS, during the 2024-25 school year (id. at p. 11).[8], [9] However, the IHO acknowledged the district's obligation to supply and fund four hours of SETSS per week for the remainder of the school year (id.). Accordingly, the IHO ordered that, if the district failed to designate a SETSS provider within 30 days, the parent could select a provider, other than Children's Learning Ladders and the current provider, to deliver SETSS to the student "for the remainder of the 2024-2025 school year, at a market rate set by the district" (id.).
Finally, the IHO made an alternative finding that, assuming the unilaterally obtained SETSS were appropriate, equitable considerations did not favor the parent and warranted reduction of the requested rate of funding (IHO Decision at p. 8).[10], [11]
IV. Appeal for State-Level Review
The parent appeals pro se. The parent contends that the IHO erred in ignoring her claim that the district failed to develop an IESP for the 2024-25 school year; determining that the 2022 IESP, including the reduction in the student's level of services from seven hours of SETSS per week to four hours of SETSS per week, offered a FAPE; ignoring the parent's request for indirect SETSS; determining that certain testimony of the student's SETSS provider was not credible; and determining that the parent failed to establish the appropriateness of the unilaterally obtained services. The parent also suggests that, as the parent of a student with an IESP, she was not required to prove the appropriateness of the unilaterally obtained services.
The district has not filed an answer to the parent's request for review.
V. Discussion – Initiation of the Appeal
As a threshold matter, I must determine whether the parent's appeal should be dismissed for noncompliance with the practice requirements of Part 279 of the State regulations, which govern appeals to the Office of State Review.
State regulation requires that any party "who intends to seek review by [an SRO] of the decision of an [IHO] shall personally serve upon the opposing party, . . . , a notice of intention to seek review" in the form described therein (8 NYCRR 279.2[a]).[12] In addition, an appeal from an IHO's decision to an SRO—whether the appeal is by a district or a parent—must be initiated by timely personal service of a verified request for review and other supporting documents, if any, upon the respondent (8 NYCRR 279.4[b], [c]). Personal service on a school district is made "by delivering a copy thereof to the district clerk, to a trustee or member of the board of education of such school district, to the superintendent of schools, or to a person who has been designated by the board of education to accept service" (8 NYCRR 279.4[b]). The petitioner must personally serve the opposing party with the notice of intention to seek review no later than 25 days after the date of the IHO's decision and with the request for review no later than 40 days after the date of the IHO's decision (8 NYCRR 279.2[b]; 279.4[a]). Thereafter, "the notice of intention to seek review, notice of request for review, request for review, and proof of service [must be filed] with the Office of State Review . . . within two days after service of the request for review is complete" (8 NYCRR 279.4[e] [emphasis added]).
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]). Generally, the failure to comply with the practice requirements of Part 279 of the State regulations, including the failure to properly serve an initiating pleading in a timely manner, may result in the rejection of the submitted documents or the dismissal of a request for review by an SRO (8 NYCRR 279.8[a]; 279.13; see B.C. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 365-66 [S.D.N.Y. Sept. 6, 2013] [upholding an SRO's dismissal of a parent's appeal where, among other procedural deficiencies, the amended petition was not personally served upon the district]; Application of a Student with a Disability, Appeal No. 16-015 [dismissing a parent's appeal for failure to effectuate proper personal service of the petition upon the district where the parent served a district employee not authorized to accept service]; Application of a Child with a Disability, Appeal No. 06-117 [dismissing a parent's appeal for failure to effectuate proper personal service in a timely manner where the parent served a CSE chairperson and, thereafter, served the superintendent but not until after the time permitted by State regulation expired]; see also Application of a Student with a Disability, Appeal No. 12-042 [dismissing parent's appeal for failure to properly effectuate service of the petition in a timely manner where the parent served the district's counsel by overnight mail]; Application of a Student with a Disability, Appeal No. 11-013 [dismissing parent's appeal for failure to timely effectuate personal service of petition upon the district]; Application of a Student with a Disability, Appeal No. 11-012 [dismissing parents' appeal for failure to timely effectuate personal service of petition upon the district]; Application of a Student with a Disability, Appeal No. 09-099 [dismissing parents' appeal for failure to timely effectuate personal service of the petition upon the district]; Application of the Dep't of Educ., Appeal No. 05-082 [dismissing a district's appeal for failure to personally serve the petition upon the parent where the district served the parent's former counsel by overnight mail]; Application of the Dep't of Educ., Appeal No. 05-060 [dismissing a district's appeal for failing to timely file a hearing record on appeal]; Application of a Child with a Disability, Appeal No. 05-045 [dismissing a parent's appeal for, among other reasons, failure to effectuate proper personal service where the parent served a school psychologist]; Application of the Dep't of Educ., Appeal No. 01-048 [dismissing a district's appeal for failure to personally serve the petition upon the parent where the district served the parent by facsimile]).
As explained below, the parent failed to initiate the appeal to the Office of State Review in accordance with the procedures prescribed in the practice regulations.
The IHO's decision was dated February 27, 2025 (IHO Decision at p. 11). Thus, the parent had until March 24, 2025, 25 days after the date of the IHO's decision, to personally serve the district with a notice of intention to seek review, and until April 8, 2025, 40 days after the date of the IHO's decision, to personally serve the district with a verified request for review (see 8 NYCRR 279.2[a], [b]; 279.4[a]).
The parent filed a notice of request for review and request for review, each dated April 9, 2025, with the Office of State Review (Notice of Req. for Rev.; Req. for Rev. at p. 1). The parent did not file a notice of intention to seek review or proof of service thereof (see 8 NYCRR 279.2[b]; 279.4[e]). Nor did the parent's filing include an affidavit of verification or proof of service of the request for review, as the practice regulations require (see 8 NYCRR 279.4[e]; 279.7[b]).[13]
The Office of State Review received the parent's filing on April 10, 2025 but had not yet received a copy of the hearing record. Therefore, by letter to the district dated April 21, 2025, the Office of State Review noted the parent's filing, the lack of a notice of intention to seek review, as well as the lack of proof of service of the request for review, and directed the district to file a copy of the hearing record by April 24, 2025, absent a request for an extension of time.[14] In a letter dated April 28, 2025, the district requested an extension of time to file the hearing record, indicating that it had not been served with the notice of intention to seek review or the request for review and, therefore, had been unaware of the parent's appeal.[15]In compliance with the extended timeline, the district filed a copy of the hearing record, which was received by the Office of State Review on May 9, 2025. The district has not filed an answer to the parent's request for review.
Based on the foregoing, the parent's appeal suffers from several deficiencies. Most fatal to the parent's appeal, the parent did not establish that she served the district with a verified request for review (see 8 NYCRR 279.4[b]) and, based on the dates set forth on the notice of request for review and request for review, even if the pleading had been served upon the district, it would be untimely (see 8 NYCRR 279.4[a]). 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]). The parent has not identified any reason for the late request for review let alone good cause.
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]).
VI. Conclusion
In summary, the parent's appeal was not initiated in accordance with the procedures prescribed in the applicable State regulations and must be dismissed.
THE APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] In lieu of an interim hearing on pendency, the parties agreed to submit briefs setting out their respective positions on pendency (Tr. at pp. 1, 5-6; IHO Ex. I at p. 1).
[3] Despite a notation in the transcript that District Exhibits 1 through 8 were admitted into evidence, the hearing record shows that the IHO excluded Proposed District Exhibit 1 as duplicative of Parent Exhibit A (see Tr. pp. 30-31, 37).
[4] The IHO admitted Parent Exhibit E, a letter requesting special education services from the district for the 2024-25 school year, even though it pertains to a different student (see Tr. pp. 38-40; Parent Exhibit E). Parent Exhibit E was not considered in this decision.
[5] The first page of the administrator's affidavit misstates the affiant's name (see Tr. pp. 72-73; Parent Ex. F at p. 1). The affiant acknowledged the error and affirmed the content of the affidavit during the hearing (see Tr. pp. 72-73).
[6] The IHO reasoned that the November 2022 CSE meeting had the proper members and the parent was present to provide input; the November 2022 IESP noted no parental objections or rejection of proposed services; the November 2022 IESP referenced sufficient evaluative data, including a 2022 neuropsychological evaluation and a teacher's report from November 2022; the November 2022 IESP contained clear annual goals and was reasonably calculated to enable the student to make progress in light of her circumstances; the November 2022 IESP, which noted that the student was performing at grade level but still required support, reduced but did not eliminate SETSS based on the student's present levels of performance; and the SETSS provider's assertions that the student was performing significantly below grade level and needed seven SETSS sessions per week were not credible (IHO Decision at pp. 5-6).
[7] The IHO reasoned that the SETSS provider gave only generalized information regarding how she assisted the student and did not explain how her instruction was specially designed to meet the student's individual needs; the hearing record lacked any information regarding the student's levels of performance at the start of the school year or how, if at all, the student's skills changed over the course of the school year; the hearing record lacked any information regarding progress the student achieved or benefits the student received from the unilaterally obtained SETSS; the evidence in the hearing record did not show how the unilaterally obtained SETSS considered or supported the student's general education instruction; and, even though the student received SETSS from Children's Learning Ladders at home, the parent provided no additional details regarding those services (IHO Decision at p. 7).
[8] The IHO noted that, notwithstanding any other finding in the decision, the parent's request for funding of the cost of two hours of indirect SETSS per week would be denied (IHO Decision at p. 8). The IHO cited the administrator's testimony that the agency's "enhanced rate of $175.00 per hour [wa]s justified, in part, due to a provider's need to allocate additional time for . . . collaboration with [the student's] teacher and preparation for services" (id. at p. 7). According to the IHO, "[t]he agency cannot expect to both receive an enhanced rate to account for coordination with teachers and preparation [for] services" while also receiving funding of "additional indirect services to allow for coordination with teachers and preparation [for] services" (id. at pp. 7-8).
[9] While the due process complaint notice requested one hour of indirect SETSS per week, the SETSS provider's affidavit expressed the need for two hours of indirect SETSS per week (compare Parent Ex. A at p. 2, with Parent Ex. G ¶¶ 5-6).
[10] The IHO cited the following factors as equitable considerations: the hearing record included limited evidence regarding the SETSS provider's qualifications; the hearing record included no information regarding the contract terms, obligations, and responsibilities; the parent failed to present any evidence regarding actions taken to locate a SETSS provider at the district-approved rate; and the parent failed to show that the unilaterally obtained SETSS provided an educational benefit to the student (IHO Decision at p. 9).
[11] In an apparent contradiction, the IHO's decision states that equitable considerations warrant a reduction in the requested rate of funding and that equitable considerations warrant either "complete denial of an award or a reduction of the requested fees to the lowest rate set by the [district]" (compare IHO Decision at p. 8, with IHO Decision at p. 10).
[12] The purpose of a notice of intention to seek review is twofold. First, in a case where the school district is the respondent, the service of a notice of intention to seek review facilitates the district's timely filing of the hearing record with the Office of State Review (see Application of a Student with a Disability, Appeal No. 16-040; Application of a Student Suspected of Having a Disability, Appeal No. 12-014; Application of a Student with a Disability, Appeal No. 11-162; Application of a Student with a Disability, Appeal No. 10-038). In addition, whether the respondent is a school district or a parent, the notice of intention to seek review, along with the accompanying case information statement, provides a respondent with advance notice of a petitioner's imminent challenge to an IHO's determination, which may give a respondent additional time to contemplate a position to be stated in an answer—time that is particularly valuable in light of the short time frame allotted for a respondent to answer a request for review or serve a cross-appeal (see 8 NYCRR 279.2[e]; N.Y. State Register Vol. 38, Issue 26, at p. 50 [June 29, 2016]; see also 8 NYCRR 279.4[b]; 279.5[a]).
[13] The Office of State Review's website includes a section dedicated to assisting pro se parents with drafting, serving, and filing appeals (see "Parent Guide to Appealing the Decision of an Impartial Hearing Officer" available athttps://www.sro.nysed.gov/book/filing-request-review-section-i). The notice of request for review filed by the parent in this matter was prepared on a form made available on the Office of State Review's website, namely, form B. However, the parent's filing did not include an affidavit of verification, available on the website as form D, or an affidavit of personal service, available on the website as form E.
[14] The parent was copied on the April 21, 2025 letter from the Office of State Review to the district.
[15] The parent was copied on the April 28, 2025 letter from the district to the Office of State Review.