STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-019
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 and Freedom Legal Group, attorneys for petitioner, by Erin G. McGuinness, 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 daughter's tuition at the International Institute for the Brain (iBrain) for the 2025-26 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]). 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, the student began attending iBrain in February 2022 (Dist. Ex. 4 at p. 23).
A CSE convened on April 2, 2025, and finding that the student remained eligible for special education as a student with a traumatic brain injury, developed an IEP for the student with a projected implementation date of April 21, 2025 (Dist. Ex. 4 at p. 1). The April 2025 CSE recommended the student attend a "District 75" specialized school, for an extended 12-month school year, in an 8:1+1 special class, with adapted physical education and a daily full-time health paraprofessional to assist with ambulation, feeding, and safety (id. at pp. 65-67). The April 2025 CSE also recommended a number of related services, including four 60-minute sessions per week of individual occupational therapy (OT), one 60-minute session per week of group OT, four 60-minute sessions per week of individual physical therapy (PT), four 60-minute sessions per week of individual speech-language therapy, and one 60-minute session of group speech-language therapy, as well as school nursing services as needed (id. at p. 66). The CSE recommended one monthly 60-minute session of parent counseling and training (id.). The April 2025 CSE also recommended special transportation services for the student to and from school (id. at p. 71).
A. Due Process Complaint Notice
By due process complaint notice dated July 6, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 school year based on various procedural and substantive violations (Parent Ex. A). As a preliminary matter, the parent asked for an interim order of pendency to maintain the student's placement at iBrain during the proceedings (id. at p. 11). As final relief, the parent requested a declaration that the district denied the student a FAPE for the 2025-26 school year and that iBrain was an appropriate placement for the student, as well as full funding by the district for the student's placement at iBrain, including tuition, transportation, and nursing services (id.). The parent also requested that the district reevaluate the student and provide additional assistive technology services and devices (id. at pp. 11-12). The parent further requested an independent educational evaluation (IEE) of the student, including independent psychological, neuropsychological, and educational needs assessments, and to reconvene the CSE to incorporate those evaluations into their recommendations and further address the student's developmental needs (id. at p. 11).
B. Impartial Hearing Officer Decisions
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 29, 2025 (IHO Decision at pp. 1-2; Tr. pp. 31-161).[1] In a decision dated November 14, 2025, the IHO found that the district demonstrated that it offered the student a FAPE for the 2025-26 school year (IHO Decision at pp. 5-9). The IHO found that the April 2025 CSE relied on multiple evaluations and reports, including a classroom observation, a psychoeducational assessment, a social history update, and private school reports, to formulate the student's recommended program, and the district demonstrated that it was ready and able to implement the student's IEP in a public school placement (id. at pp. 5-6). The IHO found that the record reflected that the parent was provided with prior written notice of the student's educational program and a school location letter (id. at p. 8). The IHO found the parent's allegations regarding class size to be meritless because the district's recommended class size mirrored the student's class size placement at iBrain, and further found that the parent's concerns about the district school's class composition were unfounded (id. at p. 6). The IHO similarly dismissed the parent's argument that the student required assistive technology to make progress, because the record reflected that the student was making progress without any assistive technology devices and did not need those services to access her private school curriculum (id. at p. 8). The IHO also found that the district not offering the student music therapy was not a denial of a FAPE, and briefly outlined the ways in which the related services recommended by the April 2025 CSE addressed the student's current skill levels and needs (id. at pp. 7-8). Finally, the IHO found that the district did not deny the student a FAPE with regard to the provision of transportation (id. at p. 9). Based on the foregoing, and the parent's failure to appear to testify at the hearing, the IHO denied the parent's claims with regard to the 2025-26 school year and dismissed them with prejudice (id.).
The IHO further found that even if she had ruled that the district provided the student with a FAPE, that the record reflected iBrain was not an appropriate placement for the student (IHO Decision at p. 10). The IHO found that with regard to the student's private placement at iBrain, the record lacked evidence of the student's class schedule, attendance records, teacher identification and credentials, the program or track the student was enrolled in, information relating to mainstreaming and access to neurotypical peers, and the student's specific curriculum, and that the parent's case heavily relied on related services without sufficient information about the student's academic instruction, which indicated that the student's program at iBrain did not meet her educational needs (id. at p. 11). The IHO found that even viewing the record in a light most favorable to the parent, the amount of actual instruction being offered to the student was not sufficient to provide the student with an educational benefit, and so the parent failed to meet her burden to show that the student's unilateral placement was appropriate (id.). The IHO thereafter found that since the parent's arguments failed regarding both the district's provision of a FAPE and the appropriateness of iBrain, she was not entitled to a review of equitable considerations (id.).
Lastly, the IHO denied the parent's request for an IEE, noting that the district had conducted a psychoeducational evaluation in January 2025 and a social history update in October and November 2024, and that the record did not reflect when, how, and what happened when the parent initially voiced her disagreement with the district evaluations (IHO Decision at pp. 14-15). The IHO faulted the parent for failing to appear at the hearing to address these and other issues, stating the parent had frustrated the hearing process and damaged her case (id. at pp. 2, 9, 15).
Based on the foregoing, the IHO denied and dismissed, the parent's claims requesting district funding of the student's program at iBrain for the 2025-26 school year, including the cost of tuition and special transportation services, and her request for an IEE, with prejudice (id.).
IV. Events Post-Dating the Impartial Hearing Officer Decision
The parent, through her attorney, previously filed a request for review, dated December 18, 2025, with the Office of State Review ("December 2025 request for review"). That filing was submitted to the Office of State Review on December 26, 2025, at which time the appeal was designated Application of a Student with a Disability, Appeal No. 25-842.
In a letter from the Office of State Review, dated December 30, 2025, the parent's attorney and her law firm were notified that the parent's filing was rejected because it failed to comply with the requirements of Part 279. Specifically, the December 2025 request for review was not signed by an attorney or by a party to the proceeding (8 NYCRR 279.8[a][4]).[2] In addition, the December 2025 request for review was rejected because it was not accompanied by an affidavit of service (8 NYCRR 279.4[a], [e]). That letter went on to remind the parent's counsel's law firm that the firm had been previously warned about incomplete filings and noncompliance with Part 279 in other cases submitted to the Office of State Review, and also previously warned that because of that prior noncompliance it was unlikely she would be granted leave to amend in future matters. That letter stated that based on those prior warnings, and the parent's attorney's law firm's continuing trend of noncompliance, the State Review Officer had declined to grant her leave to amend her request for review sua sponte, that Appeal No. 25-842 was administratively closed and that no further action would be taken.
The parent's attorney responded by letter dated December 30, 2025, asking the SRO, who had already expressly declined to grant her leave to amend her request for review, to accept the December 2025 request for review or grant the parent leave to amend to correct clerical errors made in the December 2025 request for review. In that letter, the parent's attorney asserted that the district was served on December 24, 2025, and attached an affirmation of service by email dated December 26, 2026, stating that the district was served via email on December 24, 2025, as well as a copy of an email from that same date. The attorney's letter also argued that the lack of a signature on the last page of the December 2025 request for review presented no burden or prejudice to the district, and all other procedural requirements had been satisfied. Because the State Review Officer had already declined to grant the parent leave to amend the December 2024 request for review and administratively closed Application of a Student with a Disability, Appeal No. 25-842, no further correspondence was issued by the Office of State Review regarding that appeal.
V. Second Appeal for State-Level Review
The parent, through her attorney, thereafter served the district with a second request for review dated January 5, 2026 ("January 2026 request for review"). The January 2026 request for review was accompanied by an affirmation of service by email ("Parent Aff. of Service") stating that the parent's attorney electronically served the district with a copy of the January 2026 request for review on January 6, 2026.
On Appeal, the parent seeks a reversal of the IHO's November 14, 2025 decision. The parent argues that the IHO erred in determining that the district offered the student a FAPE for the 2025-26 school year. The parent further argues that the IHO erred in concluding that iBrain was not an appropriate placement for the student and improperly failed to find that equitable considerations favored the parent. In addition, the parent argues that the IHO erred in denying the requested IEE. The parent alleges that the IHO failed to address all of the procedural and substantive violations alleged in the due process complaint notice, made mistakes of fact and law, and erred by drawing a negative inference against the parent's decision not to testify at the hearing. As relief, the parent requests a reversal and modification of the IHO's decision, including an order directing full funding for the student's program at iBrain for the 2025-26 school year, funding for special transportation services, 1:1 nursing services, and all additional relief requested in the due process complaint notice, including additional assistive technology services, the originally requested IEE, and a reconvening of the CSE to incorporate the information from the IEE.
The January 2026 request for review argues that good cause exists to excuse the late filing. The parent asserts that the previous December 2025 request for review was timely served on the district on December 24, 2025. The parent asks that the State Review Officer accept the January 2026 request for review, stating that the delay in filing the instant appeal was "the result of a clerical oversight in counsel's office, which was promptly corrected upon discovery" (Req. for Rev. at ¶ 13). The parent argues that the district suffered no prejudice and has been in possession of the December 2025 request for review since it was originally served, and, therefore, was aware of the issues raised therein.[3]
The district has not submitted an answer or otherwise appeared in this case.
VI. Discussion – Timeliness of Appeal
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 parent failed to initiate the appeal in accordance with the timelines prescribed in Part 279 of the State regulations. The IHO's decision is dated November 14, 2025; thus, the parent would have had until December 24, 2025 to personally serve the district with a verified request for review (see IHO Decision at p. 16; 8 NYCRR 279.4[a]). The parent's attorney served the January 2026 request for review upon the district by email on January 6, 2026, 13 days late after the initial deadline (see Parent Aff. of Service).
The parent argues that good cause exists to excuse the untimely filing of the January 2026 request for review. The parent argues that the original December 2025 request for review was timely, and that the delay in refiling the January 2026 request for review was a "clerical oversight" that was "promptly corrected upon discovery" (Req. for Rev. at ¶ 13). However, the attorney's delay in refiling the January 2026 request for review is an oversight that is solely attributable to the attorney and/or the law office's practices, and such 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]). The January 2026 request for review offers no specific explanation or excuse for the untimely filing and service that was not directly within the parent's control.
The parent also argues that the district suffered no prejudice and had been in possession of the December 2025 request for review since December 24, 2025. However, lack of prejudice to the district does not, by itself, provide good cause for why service of the January 2026 request for review was not made on time (see 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"]).
As a general matter, the failure to comply with the practice requirements of Part 279 of the State regulations may either result in the rejection of the submitted documents or the dismissal of a request for review by an SRO, depending on the circumstances of each case (8 NYCRR 279.8[a]-[c]; 279.13; see T.W., 891 F. Supp. 2d at 440-41 [upholding dismissal of a petition for review that was untimely and exceeded page limitations]). However, "judgments rendered solely on the basis of easily corrected procedural errors or 'mere technicalities,' are generally disfavored" (J.E. v. Chappaqua Cent. Sch. Dist., 2015 WL 4934535, at *4-*6 [S.D.N.Y. Aug. 17, 2015], quoting Foman v. Davis, 371 U.S. 178 [1962]). A State Review Officer is precluded from reopening or reconsidering a final determination—as explained by the United States Department of Education, "[o]nce a final decision has been issued, no motion for reconsideration is permissible" (Letter to Weiner, 57 IDELR 79 [OSEP 2010]; see C.C., Jr. v. Beaumont Indep. Sch. Dist., 2015 WL 13648561, at *10-*11 [E.D. Tex. Mar. 23, 2015]).
The sentiments underlying the decision in J.E. are why the parent's counsel's law firm had been granted leave to amend and cure defects in filings in previous appeals, in the interest of preserving their clients' right to refile appeals in compliance with the practice regulations. Despite this, the repeated failures of the parent's law firm to comply with the filing requirements of Part 279 of State regulations—after multiple warnings—makes a continuation of permitting leave to amend defective filings unwieldly and it is not sustainable (see Application of a Student with a Disability, Appeal No. 25-807 [dismissing an untimely appeal that was previously rejected and administratively closed due to failure to file a verified request for review and failure to provide valid proof of service with the original filing, referencing previous warnings about regulatory noncompliance to the same law firm and attorney who appeared in this matter]; Application of a Student with a Disability, Appeal No. 25-800 [dismissing an untimely appeal on a similar basis, that was also previously rejected and administratively closed due to multiple defects with the original filing, referencing similar previous warnings to the same law firm and attorney who appeared in this matter]). Had the parent not waited until December 24, 2025 to serve the December 2025 request for review upon the district—the last possible date to timely serve that filing—and then waited to submit that filing to the Office of State Review on December 26, 2025, she might have had additional time after the prior appeal was rejected to effectuate timely service of a request for review that conformed with the regulations.
As an additional matter, it is worth again noting that the December 30, 2025 letter rejecting the prior appeal had explicitly notified the parent's attorney that leave to amend the request for review was not being granted due to the parent's law firm having "previously been warned about incomplete filings and noncompliance with Part 279 and the unlikelihood that leave to amend would be granted in future matters." However, neither the parent's request for review nor memorandum of law expresses an acknowledgment of the prior SRO's explicit decision not to grant leave to amend, nor do they provide any argument as to why the mistakes in the initial filing in Application of a Student with a Disability, Appeal No. 25-842 should not have been weighed in consideration of the parent's law firm's history of failing to comply with the practice regulations. Additionally, parent's counsel makes no attempt to explain what caused the deficiency in the prior filings, or what steps had been taken by parent's counsel after the prior warnings to ensure that future filings were compliant, offering no more than a vague attribution of the deficiencies in the initial filing in Application of a Student with a Disability, Appeal No. 25-842 to "clerical error" or "clerical oversight" (Req. for Rev. ¶¶12, 13).
Accordingly, based on the above, the parent has failed to assert a sufficient basis to find that good cause exists to excuse the untimely service of the January 2026 request for review on the district (8 NYCRR 279.13).
Because the parent failed to properly initiate this appeal by effectuating timely service of the January 2026 request for review upon the district, and I do not find the parents' attorney's explanation to constitute good cause for its untimeliness, 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. 18-046 [dismissing request for review for being served one day late]; see also B.D.S. v. Southold Union Free Sch. Dist., 2011 WL 13305167, at *17 [E.D.N.Y. Apr. 26, 2011] [noting that "[i]nadvertence, mistake or neglect does not constitute good cause"]).
VII. Conclusion
Having found that the parent failed to timely initiate the appeal, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] A prehearing conference was also held on August 7, 2025 (IHO Decision at pp. 2-3; Tr. pp. 1-30). Thereafter, the IHO issued a preliminary order on pendency, dated August 19, 2025, which found that the student's pendency program was based on the unappealed findings of fact from a previous IHO decision dated September 9, 2024, and directed the district to fund tuition to iBrain for the 12-month extended school year, and to provide special transportation services for the student (Interim IHO Decision at p. 1).
[2] The district had submitted a request for an extension to file an answer in Application of a Student with a Disability, Appeal No. 25-842. In the December 30, 2025 letter, the SRO noted that the request for an extension to answer was moot as the request for review was rejected.
[3] The January 2026 request for review was also accompanied by another copy of the abovementioned December 30, 2025 letter from the parent's attorney to the Office of State Review, sent after Application of a Student with a Disability, Appeal No. 25-842 was rejected and administratively closed. That letter referenced attached affidavits of service relating to the December 2025 request for review, which were originally included in the letter in the prior matter, but in this matter, the letter submitted by the parent with the January 2026 request for review did not actually include the referenced documents.