STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-795
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
Appearances:
Liberty & Freedom Legal Group, Ltd., attorneys for petitioner, by Erin G. McGuinness, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Abigail Hoglung-Shen, 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 reimbursement of her daughter's tuition costs at the International Academy for the Brain (iBrain) for multiple school years. Respondent (the district) cross-appeals from the IHO's decision and argues additional grounds for dismissal of the parent's claims. The appeal must be dismissed. The cross-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]). 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
Due to the disposition of this appeal, a full recitation of the facts and procedural history is unnecessary. Briefly, a CSE convened on February 8, 2024, determined the student was eligible for special education as a student with multiple disabilities, and developed an IEP for the student (see Parent Ex. C).[1] The February 2024 CSE recommended the student attend a 12-month program consisting of a 6:1+1 special class in a district specialized school with three periods per week of adapted physical education; a daily, full-time health paraprofessional to assist with ambulation, feeding, and safety; and access to assistive technology in the form of switches plus one 60-minute session of individual assistive technology services per week (id. at pp. 45, 46). For related services, the CSE recommended five 60-minute sessions of individual occupational therapy (OT) per week, five 60-minute sessions of individual physical therapy (PT) per week, five 60-minute sessions of individual speech-language therapy per week, and two 60-minute sessions of individual vision education services per week (id. at pp. 45-46). The CSE also recommended one 60-minute session of group parent training and counseling per month (id. at p. 46). The CSE recommended specialized transportation of closest safe curb, 1:1 paraprofessional, and a lift bus that could accommodate a regular size wheel chair (id. at p. 51).
According to the district, the student was over the age of 21 and was discharged from the district on September 6, 2024 (Dist. Ex. 14).
In a letter dated June 12, 2025, the parent notified the district of her intent to unilaterally enroll the student at iBrain for the 2025-26 extended school year (Parent Ex. A at pp. 10-11). On July 2, 2025, the parent electronically signed a transportation agreement with Sisters Travel, LLC for the provision of special transportation services for the student to and from iBrain for the 2025-26 extended school year (id. at pp. 52-59). On July 3, 2025, the parent electronically signed an enrollment contract with iBrain for the student's attendance for the 2025-26 extended school year (id. at pp. 45-51).
A. Due Process Complaint Notices
In an initial due process complaint notice dated June 19, 2025, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2021-22, 2022-23, and 2024-25 school years on various procedural and substantive grounds (see IHO Ex. VIII). The parent acknowledged that the student was above the age of 21 but asserted that the student was entitled to a FAPE through the age of 21 and until 22 years old (id. at p. 1). For relief, the parent requested an order directing the district to fund the full cost of the student's tuition at iBrain for the 2024-25 school year and the costs of the special transportation services pursuant to the terms of the parent's contract (id. at p. 13). Further, the parent requested an order compelling the district to provide two years of tuition and related services, inclusive of special transportation services, as compensatory education for the district's failure to offer a FAPE for the 2020-21 and 2021-22 school years (id.). The parent also requested an order for the district to fund an independent neuropsychological evaluation of the student (id.).
In a second due process complaint notice dated July 7, 2025, the parent alleged that the district denied the student a FAPE for the 2025-26 school year (see Parent Ex. A). The parent noted that although the student had turned 22 years old, she was still entitled to compensatory education services due to the district's failure to offer a FAPE for multiple school years (id. at p. 1).[2]
Regarding the 2025-26 school year, the parent contended that the student required a small, structured classroom with 1:1 direct instruction and a full-time paraprofessional during school and transit (Parent Ex. A at p. 4). The parent asserted that iBrain had provided the student with appropriate instruction since she began attendance in January 2023 (id. at pp. 4-5). The parent argued that the district failed to convene a CSE and create an IEP for the student for the 2025-26 school year and failed to provide the parent with a school location letter (id. at p. 5). Due to these failures, the parent provided notice to the district of their intent to enroll the student at iBrain for the 2025-25 school year (id.). The parent alleged multiple other procedural and substantive violations by the district (id. at pp. 5-6).
For relief, the parent requested an order directing the district to fund the student's iBrain tuition costs for the 2025-26 extended school year and to direct payment to the special transportation company per the terms of the parent's agreement (Parent Ex. A at p. 8). Also, the parent requested an order for the district to fund an independent neuropsychological evaluation and an order for the district to fund assistive technology devices (id. at pp. 8-9).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on July 24, 2025, and concluded on October 6, 2025, after three days of proceedings (see Tr. pp. 1-284).
In a decision dated October 30, 2025, the IHO found that the parent's claims relating to the 2021-22 and 2022-23 school years were barred by the doctrine of res judicata, the statute of limitations, and/or were moot (IHO Decision at pp. 4-5, 37). The IHO dismissed the parent's claims regarding the 2025-26 school year on the basis that the student was not legally entitled to a FAPE due to her age (id. at p. 5). For the 2024-25 school year, the IHO dismissed the parent's claims based on a finding that the student was not entitled to a FAPE due to her age, but in the alternative, the IHO held that the district met its burden to show that it offered a FAPE to the student, that the parent failed to demonstrate that iBrain was an appropriate unilateral placement, and that equitable considerations did not support the parent's request for relief for the 2024-25 school year (id.).
IV. Appeal for State-Level Review
The parent appeals. The parent argues that the IHO erred by finding that the parent's claims relating to the 2021-22 and 2022-23 school years were barred by res judicata because there had been no prior adjudication on the merits for those school years. The parent also argues that the IHO's alternative finding that those school years were time barred by the statute of limitations was also without merit. According to the parent, the two-year statute of limitations does not run until the parent "had reason to know" of the deprivation of rights and she did not know of the deprivation until the student began attending iBrain in 2023. In the alternative, the parent contends that her claims relating to the 2021-22 and 2022-23 school years should not be time barred by the statute of limitations due to the "doctrine of continuing violation."
The parent further argues that the IHO erred by not finding a gross violation of a FAPE to warrant the student's extended eligibility and the remedy of compensatory education in order to compensate for the student's regression. The parent contends that the IHO erred in dismissing her claims for the 2024-25 and 2025-26 school years by finding the student was not entitled to a FAPE. The parent asserts that the student's eligibility for the 2024-25 school year was not in dispute and requests a finding that the student has extended eligibility for both the 2024-25 and 2025-26 school years.
Next, the parent argues that the IHO erred in finding that the district offered a FAPE to the student for the 2024-25 school year without conducting a Burlington-Carter analysis. The parent contends that the district failed to offer a FAPE for both the 2024-25 and 2025-26 school years because it failed to convene CSE after the February 2024 IEP expired and that there were several predetermined recommendations by the CSE. The parent also asserts that the IHO should have found that iBrain was an appropriate unilateral placement and that equitable considerations favor the parent for both the 2024-25 and 2025-26 school years.
Finally, the parent argues that the IHO erred by failing to issue a pendency order, by denying her request for independent educational evaluations (IEEs), by finding an adverse inference against the parent, and by failing to address all of the allegations in the due process complaint notice.[3]
The district cross appeals. The district asserts that the parent failed to timely serve the request for review. The district alleges that the parent failed to attach the actual request for review to the email on December 9, 2025, and did not attach the document until the district was served again via email on December 12, 2025, which was past the 40-day deadline. Based on this, the district contends that it was not timely served and that the request for review should be dismissed. In addition, the district argues other procedural deficiencies regarding the parent's pleadings such as an unsigned request for review and improperly dated verification.
Turning to the merits of the appeal, the district argues that the IHO properly held that the 2021-22 and 2022-23 school years were barred by the statute of limitations and res judicata. For a cross appeal, the district argues that the 2024-25 school year is barred by res judicata because the claims have already been heard by the Office of State Review. Regarding the 2024-25 and 2025-26 school years, the district argues that the student was not entitled to FAPE due to her age and that the IHO correctly dismissed the claims on this basis. Lastly, the district contends that the IHO properly denied the pendency request, properly found that the student was not entitled to compensatory education services and properly denied the request for IEEs.
V. Discussion – Timeliness of Request for Review
As a threshold matter, it must be determined whether 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 district is correct that the parent failed to initiate the appeal in accordance with the timelines prescribed in Part 279 of the State regulations. The IHO rendered the decision on October 30, 2025 (IHO Decision at pp. 1, 37). The parent was therefore required to serve the request for review on the district no later than Tuesday, December 9, 2025 (see 8 NYCRR 279.4, 279.11[b]). The parent's representative filed an "affirmation of service by email" stating that, on December 9, 2025, the request for review was served by email on the district (Parent Aff. of Serv.). However, the district asserts that the parent did not actually serve the pleading until three days later on Friday December 12, 2025.
The district, in the answer with cross appeal, filed a verification made under the "penalties of perjury" by the district attorney who signed the pleading and additional evidence consisting of a prior SRO decision, and emails between the parties regarding the service of documents in this matter (see Dist. Verif.; SRO Exs. 1-3).[4] In the answer with cross appeal, the district asserts that on December 9, 2025, the parent failed to serve the request for review, and instead served a notice of request for review, two memorandum of laws, and an affirmation of verification (Answer & Cr.-App. ¶ 10). The district supported this assertion by attaching the email dated December 9, 2025 with the attached documents (see SRO Ex. 2). The district also asserts that the parent served the actual request for review on December 12, 2025 via email (see Answer & Cr.-App. ¶ 10; SRO Ex. 3). The email dated December 12, 2025 included a sentence from the parent's attorney stating "apologies of the curfuffle regarding the Request for Review for [student] in [IHO case number]. Please find attached the correct packet." (SRO Ex. 3 at p. 1). The parent, in her reply and answer to the cross appeal, states that the omission of the request for review from the papers that were served by email on the district on December 9, 2025 was a clerical error (Reply ¶ 4). In addition, the parent argues that the district was not prejudiced by the three-day delay in receiving the actual request for review (Reply ¶¶ 4-5).
Based upon my review of the district's unrefuted additional evidence, the parent did not serve the district within the timelines set forth in State regulation. State regulation requires personal service in order to initiate an appeal and makes clear that "[s]ervice shall be complete upon delivery to the party being served" (8 NYCRR 279.4[a], [b], [d]). Here, although the district consented to service by email, service was not effectuated until December 12, 2025, and the parent's attempt to serve the district on December 9, 2025 was defective and incomplete (see SRO Ex. 3 at p. 1). While New York courts and the Office of State Review have increasingly permitted service of process by email as an alternative form of service and the Office of State Review has not interjected when the parties mutually agree to service by email instead of personal service as required by State regulations, in order to be effectuated, service by email must comport with due process and apprise a party of the action (see, e.g., Alfred E. Mann Living Tr. v. ETIRC Aviation S.a.r.l., 78 A.D.3d 137, 140-43 [1st Dep't 2010] [noting that alternative service by email or fax is generally proper unless there is a showing that the defendant did not receive the transmitted information]; In re J.T., 53 Misc. 3d 888, 893 [N.Y. Fam. Ct. 2016] [holding that service of process was reasonably calculated to apprise the respondent of the proceeding]).
In this case, the parent's representative acknowledged that the parent's request for review was not attached to the December 9, 2025 email as evidenced by the December 12, 2025 email to the district on December 12, 2025 in which the sender apologized and attached the request for review, and in the reply, in which the parent's attorney characterizes the failure to initially attach the request for review as a "clerical error" (SRO Ex. 3 at p. 1; see also Reply ¶ 4). While service by email may afford litigants greater flexibility and convenience, it comes with sacrifices to the formality and assurances that personal service affords. Here, the parent's representative took a gamble in waiting until literally the eleventh hour, well after business hours, on the last day to timely serve the request for review and in relying on service by email. The parent's representative sent an email dated December 9, 2025 at 10:40 p.m. with the IHO case number in the subject line and a message in the body of the email stating "[p]lease find Parents RFR along with Memorandum of Law and Proposed SRO Exhibits" along with three attachments (see SRO Ex. 2 at p. 1). This late action by the parent's representative did not allow much time to fix the "clerical error." Thus, the parent's December 9, 2025 attempt of service was defective and incomplete. Ultimately, on December 12, 2025, the parent's representative emailed the request for review to the district's attorney identified in the affidavit of service, but such service was now three days late (see SRO Ex. 3).
As noted above, the parent's attorney asserts in the reply that the request for review was not served timely due to a "clerical error." Law office failure does not constitute "an event that the filing party had no control over" (see 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]). To the contrary, "counsel had control over its calendaring of the deadline" and, therefore, "any clerical error cannot constitute good cause" (Polanco v. Porter, 2023 WL 2751340, at *5 [S.D.N.Y. Mar. 31, 2023]). The parent's attorney also asserts that the district was not prejudiced by the delay, noting the district did receive the memorandum of law by email sent on December 9, 2025, which would have enabled the district to know the parent's arguments on appeal. However, lack of prejudice to the district is not a reason why the request for review was not timely served (see Vasquez v. Aviles-Ramos, 2026 WL 203270, at *6 [S.D.N.Y. Jan. 26, 2026] [noting that "actual notice" is not the equivalent of "service of process" and that the regulations do not provide for "an exception to the service rules for lack of prejudice"]; B.C. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 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"]). Accordingly, the parent's assertion of good cause for the late service of the request for review is without merit as the parent has not alleged an event that the party did not have control over.
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 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. 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. 23-294 [dismissing a parent's appeal for failure to effectuate timely service when the appeal papers were sent by email that was received by the district seven seconds past the deadline for timely service]; Application of a Student with a Disability, Appeal No. 18-046 [dismissing request for review for being served one day late]).
Lastly, generally a cross-appeal is considered timely when it is served upon the petitioner together with a timely-served answer (see 8 NYCRR 279.4[a], [f]; 279.5); however, this is predicated upon the appeal itself being timely commenced. In this matter, the request for review was untimely and, therefore, the cross-appeal is also untimely and there is no basis to consider it (see Endicott Johnson Corp. v. Liberty Mutual Insurance Co., 116 F.3d 53 [2d Cir. 1997] [finding plaintiff's untimely notice of appeal made defendant's subsequent cross-appeal also untimely]; Application of the Bd. of Educ., Appeal No. 12-059). The district's cross-appeal is, accordingly, also dismissed.
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.
THE CROSS APPEAL IS DISMISSED.
Footnotes
[1] Both parties submitted copies of the student's February 8, 2024 IEP into the hearing record (compare Parent Ex. C, with Dist. Ex. 1). For purposes of this decision, only the parent's exhibit will be cited.
[2] The parent requested that the due process complaint notice dated July 7, 2025 be consolidated with her June 2025 due process complaint notice (Parent Ex. A at p. 2). In an interim order dated July 8, 2025, the IHO consolidated the June 2025 due process complaint notice with the July 2025 due process complaint notice (see IHO Ex. III).
[3] The parent also contends that the IHO erred by not reviewing her claims under section 504 of the Rehabilitation Act of 1973 ("section 504"), 29 U.S.C. § 794. To the extent the parent pursues her claims under section 504 on appeal, an SRO lacks jurisdiction to consider a parent's challenge to an IHO's failure or refusal to rule on section 504 as an SRO's jurisdiction is limited by State law to matters arising under the IDEA and Article 89 of the Education Law (Educ. Law § 4404[2] [providing that SROs review IHO determinations "relating to the determination of the nature of a child's handicapping condition, selection of an appropriate special education program or service and the failure to provide such program"]). Courts have also recognized that the Education Law makes no provision for State-level administrative review of IHO decisions with regard to section 504 (see A.M. v. New York City Dep't of Educ., 840 F. Supp. 2d 660, 672 & n.17 [E.D.N.Y. 2012] [noting that "[u]nder New York State education law, the SRO's jurisdiction is limited to matters arising under the IDEA or its state counterpart"], aff'd, 513 Fed. App'x 95 [2d Cir. 2013]; see alsoF.C. v. New York City Dep't of Educ., 2016 WL 8716232, at *11 [S.D.N.Y. Aug. 5, 2016]). Therefore, an SRO does not have jurisdiction to review any portion of the parent's claims regarding section 504, and accordingly such claims will not be further addressed.
[4] 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]). Here, the parties' emails that are attached to the answer could not have been presented at the impartial hearing and are necessary to consider in order to render a decision about the timeliness of the parent's appeal.