STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-699
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 Natan Shmueli, attorneys for petitioner, by Natan Shmueli, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Thomas 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 for respondent (the district) to fund the costs of her son's private services delivered by Big N Little Corp. (Big N Little) for the 2024-25 school year. The appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to 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]). Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm], 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804). If disputes occur between parents and school districts, 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, on January 10, 2011, a Committee on Preschool Special Education (CPSE) convened, found the student eligible for special education services as a preschool student with a disability, and developed an IEP which recommended the student receive 12-month services consisting of special education itinerant teacher (SEIT) services to be provided by a bilingual Yiddish-English provider, as well as the following related services: five 30-minute sessions per week of individual speech-language therapy, five 30-minute sessions per week of individual occupational therapy (OT), four 30-minute sessions per week of individual physical therapy (PT), and two 30-minute sessions per week of individual counseling (Parent Ex. B at pp. 1, 11).[1], [2]
On May 20, 2012, a CSE convened in anticipation of the student's transition to school-aged programing, found the student eligible for special education services as a student with autism, and developed an IEP with an implementation date of September 10, 2012 (Parent Ex. C).[3] The CSE recommended the student receive 12-month services consisting of 20 periods per week of a 6:1+1 special class in Yiddish, five periods per week of adapted physical education in Yiddish, three 30-minute sessions per week of group speech-language therapy in Yiddish, three 30-minute sessions per week of individual PT, three 30-minute sessions per week of individual OT, and one 30-minute session per week of individual counseling (id. at pp. 19-20).
Based on the parent's testimony, the May 2012 IEP was the last program the district developed for the student until the 2024-25 school year, the student had been receiving 19 hours per week of SEIT services "since the creation of the January 10, 2011 IEP, which has been funded by the [district]," and the student received related services through providers funded by health insurance or privately (Parent Ex. P ¶¶ 3, 4).
In 2024, the parent entered into a contract with Big N Little wherein Big N Little agreed to provide the student with 19 hours per week of SEIT services or special education teacher support services (SETSS) at a rate of $200 per hour during the 2024-25 school year (Parent Exs. F; P ¶ 11).[4] According to the Big N Little program supervisor, the teacher, who provided the student's services during the 2024-25 school year, had been providing "SEIT/SETSS to [the student] for several years" (Parent Ex. Q ¶ 6).
On October 28, 2024, a CSE reconvened, found that the student continued to be eligible for special education services as a student with autism, and developed an IEP with an implementation date of November 13, 2024 (Parent Ex. K).[5] The CSE recommended that the student receive 10-month services consisting of a 12:1+1 special class in math (10 periods per week), English language arts (ELA) (10 periods per week), sciences (two periods per week), and social studies in (three periods per week) (Parent Ex. K at pp. 25, 27). All subjects were designated as being taught in Yiddish, other than ELA (id.). The CSE also recommended related services consisting of two 30-minute sessions per week of individual counseling in Yiddish, two 30-minute sessions per week of individual OT, four sessions per year of group parent counseling and training, two 30-minute sessions per week of individual PT, and three 30-minute sessions per week of individual speech-language therapy in Yiddish (id. at pp. 25-26).
A. Due Process Complaint Notice
In a due process complaint notice dated April 25, 2025, the parent alleged that the last agreed-upon program for the student was the January 2011 CPSE IEP (Parent Ex. A at p. 3). The parent argued that pursuant to the "Stay Put" provisions of the IDEA and State Education Law, the student was entitled to an order of pendency for the extended 12-month 2024-25 school year based on the January 2011 CPSE IEP (id. at p. 4). The parent further asserted that the CSE developed a May 2012 IEP and an October 2024 IEP; however, the parent did not agree that either of those IEPs were appropriate for the student (id. at p. 3). The parent alleged that, while the October 2024 IEP recommended services for only a 10-month school year, the student required a 12-month extended school year to prevent substantial regression (id. at pp. 4-5). The parent asserted that her request for relief was based on the district's failure to provide the student with a FAPE for the 2024-25 school year, hold a timely annual review meeting, develop an appropriate educational program for the student, and implement special education services for the student (id. at p. 5). As relief, the parent requested, in pertinent part, an order scheduling a pendency hearing, an order on pendency, and an order requiring the district to fund 19 hours of SETSS per week provided to the student during the extended 12-month 2024-25 school year at a rate of $200 per hour (id.). The parent also requested an award of all related services set forth in the October 2024 IEP (id.).
B. Impartial Hearing Officer Decisions
After a preliminary conference held on May 28, 2025, an impartial hearing convened and concluded before an IHO with the Office of Administrative Trials and Hearings (OATH) on July 1, 2025 (Tr. pp. 1-59). In a decision dated September 24, 2025 (Sept. 24, 2025 IHO Decision), the IHO noted that the parent sought an award of pendency based on the January 2011 CPSE IEP, funding for the unilaterally-obtained 19 hours of SETSS, and related services as set forth in the October 2024 IEP (Sept. 24, 2025 IHO Decision at p. 3). The IHO then found that the district failed to provide the student with a FAPE for the 2024-25 school year (Sept. 24, 2025 IHO Decision at p. 5).[6] Next, the IHO concluded that under the totality of the circumstances, the parent failed to meet her burden of proving the appropriateness of the SETSS provided by Big N Little for the 2024-25 school year (id. at pp. 5-7). The IHO held that the hearing record lacked adequate information regarding the student's general education program and how the SETSS were designed to support access to any specific curriculum (id. at p. 6). In addition, the IHO concluded that there was no indication that the service provider conducted any independent assessment or evaluation of the student (id.). As such, the IHO determined that the hearing record lacked a baseline of the student's academic functioning at the beginning of the 2024-25 school year, making it difficult to determine whether any measurable progress had been made (id.). Based on the foregoing, the IHO denied the parent's requested relief (id.).
On October 1, 2025, the IHO issued a "corrected" IHO decision (Oct. 1, 2025 IHO Decision) by amending the September 24, 2025 IHO Decision to add a determination that the parent's request for pendency must be denied (compare Sept. 24, 2025 IHO Decision, with Oct. 1, 2025 Decision). The IHO concluded that the program and placement referenced in the January 2011 CPSE IEP was not a current operative placement or program and, therefore, did not establish the student's pendency placement for the 2024-25 school year (Oct. 1, 2025 IHO Decision at p. 7).
IV. Appeal for State-Level Review
The parent appeals from the IHO Decision, alleging that the IHO erred in denying her request for a pendency order. Specifically, the parent asserts that her unchallenged and unrefuted testimony revealed that the last agreed-upon educational program for the student was the January 2011 CPSE IEP.[7] In addition, the parent argues that even if the IHO did not find that the January 2011 IEP was the current operative placement or program, the evidence and testimony presented at the hearing made it clear that the student's operative placement at the time the hearing commenced was identical to that set forth in the January 2011 CPSE IEP. As relief, the parent requests an order: reversing that portion of the IHO's decision that denied her request for a pendency order, determining the student's pendency program, and directing the district to fund such pendency placement for the student.
In an answer, the district argues that the parent's appeal should be dismissed because the request is untimely and the parent failed to set forth good cause as to why her appeal did not comply with State practice regulations for timely initiation of appeals. The district asserts that the October 1, 2025 IHO Decision is invalid and, consequently, the date of its issuance cannot be used to calculate the date from which the parent should have effectuated service upon the district because IHOs are precluded from reopening a due process proceeding and altering substantive findings of a final decision.
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 failure 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]). 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]). However, 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]).
Here, the parent failed to initiate the appeal in accordance with the timelines prescribed in Part 279 of the State regulations. The parent was required to serve the request for review upon the district no later than November 3, 2025, 40 days from the date of the September 24, 2025 IHO decision (see 8 NYCRR 279.4[a]). According to the parent's proof of service, the parent did not effectuate service until November 10, 2025, which renders the request for review untimely (id.).
Additionally, the parent has failed to assert good cause in her request for review for the failure to timely initiate the appeal from the September 24, 2025 IHO decision. In the request for review, the parent acknowledges that the IHO issued a decision on September 24, 2024 which failed to address the parent's request for a pendency order. State regulation provides that a "party may seek review of any interim ruling, decision, or failure or refusal to decide an issue" in an appeal from an IHO's final determination (8 NYCRR 279.10[d]). Thus, to the extent the parent wished to challenge the IHO's failure to rule on pendency in the September 24, 2025 IHO decision, State regulation compels the parent to appeal from that final determination.
The hearing record does not contain any clarification from the IHO as to why a second decision was issued; regardless, the parent may not rely on the date of the second decision to calculate the time to appeal (compare Sept. 24, 2025 IHO Decision, with Oct. 1, 2025 IHO Decision).[8] Indeed, an IHO's jurisdiction is limited by statute and regulations and there is no authority for an IHO to reopen an impartial hearing, reconsider a prior decision, or retain jurisdiction to resolve future disputes between the parties (see Application of the Dep't of Educ., Appeal No. 17-009; Application of the Dep't of Educ., Appeal No. 16-065; Application of a Student with a Disability, Appeal No. 16-035; Application of the Dep't of Educ., Appeal No. 15-073; Application of a Student with a Disability, Appeal No. 15-026; Application of the Dep't of Educ., Appeal No. 12-096; Application of a Student with a Disability, Appeal No. 11-046; Application of the Dep't of Educ., Appeal No. 11-014; Application of the Dep't of Educ., Appeal No. 08-024; Application of the Bd. of Educ., Appeal No. 07-081; Application of the Dep't of Educ., Appeal No. 06-133; Application of a Child with a Disability, Appeal No. 06-021; Application of a Child with a Disability, Appeal No. 05-056; Application of the Bd. of Educ., Appeal No. 02-043; Application of the Bd. of Educ., Appeal No. 98-16; see also J.T. v. Dep't of Educ., 2014 WL 1213911, at *10 [D. Haw. Mar. 24, 2014]; Application of the Dep't of Educ., Appeal No. 08-041). Rather, the IDEA, the New York State Education Law, and federal and State regulations provide that an IHO's decision is final unless appealed to an SRO (20 U.S.C. § 1415[i][1][A]; Educ. Law § 4404[1][c]; 34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]).
Although an IHO may, under certain circumstances, issue a limited correction to a final decision on the merits to make ministerial, non-substantive changes, the date such correction is made does not replace the date on which the final decision was issued for purposes of calculating the time for appeal. If such a practice were allowed, it would result in an IHO essentially unilaterally granting a party an extension of time to appeal an IHO decision, which is not permissible. Accordingly, when the IHO issued his September 24, 2025 decision, his jurisdiction over the matter ended and the 40-day timeline for an appeal began to run.[9] Allowing issuance of multiple final decisions would create confusion and throw the due process hearing system envisioned by Congress into disarray, resulting in multiple appeals from multiple final decisions.
Thus, 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 request for review, in an exercise of my discretion, the appeal is dismissed (8 NYCRR 279.13; see 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. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 365-67 [S.D.N.Y. 2013]; 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
Having found that the request for review must be dismissed because the parent failed to timely initiate the appeal, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] State law defines SEIT services (or, as referenced in State regulation, "Special Education Itinerant Services" [SEIS]) as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available at https://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities). A list of New York State approved special education programs, including SEIS programs, can be accessed at: https://www.nysed.gov/special-education/approved-preschool-special-education-programs.
[2] While the parent asserts that the January 2011 CPSE IEP recommended 19 hours of SEIT services per week, a review of the IEP does not reveal a designated number of hours (compare Parent Exs. A at p. 3; P ¶ 2, with Parent Ex. B).
[3] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[4] At times in the hearing record, the special education teacher services provided by Big N Little are interchangeably referred to as either SEIT services or SETSS. SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district. For purposes of this decision, unless otherwise relevant to the context, the services will be referred to as SETSS.
[5] Both parties submitted a copy of the October 2024 IEP (see Parent Ex. K; Dist. Ex. 1). For purposes of this decision, only the parent's exhibit will be cited.
[6] At the impartial hearing, the district conceded that it had failed to provide the student with a FAPE for the 2024-25 school year as it developed an IEP "that was created late" and the district had not provided the parent with a school location letter (Tr. p. 22).
[7] The parent submits additional documentation and requests that it be considered on appeal. The first proposed exhibit consists of a proposed pendency order together with a brief in support of an order on pendency that was submitted to the IHO on May 23, 2025. The second proposed exhibit, consisting, of 64 pages, includes email exchanges between the parent's attorney and the district regarding pendency, the January 2011 CPSE IEP, and a pediatric neurology consultation of the student dated October 29, 2009. Generally, documentary evidence not presented at an impartial hearing is considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10 [b]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]). As the additional evidence is not necessary considering the disposition of this appeal, it will not be considered.
[8] As set forth above, a comparison of the September 24, 2025 IHO Decision with the October 1, 2025 IHO Decision reveals that the IHO added a pendency determination in the "corrected" decision (compare Sept. 24, 2025 IHO Decision, with Oct. 1, 2025 IHO Decision).
[9] While a state may adopt a procedure allowing for a clarification or a motion for reconsideration, there is no such State law or regulation in this jurisdiction (see Questions and Answers on IDEA Part B Dispute Resolution Procedures, 61 IDELR 232, at p. 46 [OSEP 2013] [indicating that a state could allow motions for reconsideration before issuance of a final decision]; see also T.G. v. Midland Sch. Dist. 7, 848 F. Supp. 2d 902, 930-31 [C.D. Ill. 2012] [discussing Illinois's statute that permits an IHO to retain jurisdiction to provide clarification of a written decision, so long as the request for such clarification by a party is provided in writing within five days of receipt of that decision]).