STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-049
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:
Liz Vladeck, General Counsel, attorneys for respondent, by Sarah M. Pourhosseini, 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, pursuant to section 8 NYCRR 279.10(d) of the Regulations of the Commissioner of Education, from an interim decision of an impartial hearing officer (IHO) determining her daughter's pendency placement during a due process proceeding challenging the appropriateness of respondent's (the district's) recommended educational program for the student 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]). 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 possible or necessary. Briefly, according to the information available in the hearing record, on June 16, 2023, a CPSE convened, and found the student eligible for special education services as a preschool student with a disability (IHO Ex. II at p. 2). The June 2023 CPSE recommended a 12-month program of 20 hours per week of special education itinerant teacher (SEIT) services together with related services of three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual occupational therapy (OT), and three 30-minute sessions per week of individual physical therapy (PT) (id.).[1]
The hearing record does not include any subsequent IEP or individualized education services program (IESP) developed for the student. However, according to the parent, for the 2025-26 school year, the district offered a 12:1+1 special class for the student in a district specialized school and identified a particular public school for the student to attend (IHO Ex. I at p. 2; see Dist. Response to Due Process Compl. Not. at pp. 3-4). According to the parent, the student was homeschooled (IHO Ex. III at p. 3).
In a due process complaint notice dated October 27, 2025, the parent, through a lay advocate, alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 school year (see generally IHO Ex. I).[2] The parent requested pendency, stating that the June 2023 IEP was the last agreed upon placement for the student (IHO Ex. I at pp. 1-2). The parent expressed disagreement with a district neuropsychological evaluation of the student (id.). Additionally, the parent asserted that a 12:1+1 special class was geared toward "very low functioning" students and, therefore, would not be appropriate for the student (id. at p. 2). The parent claimed that the district did not provide notice of an assigned school for the student "until the last day of school" for the prior school year, leaving the parent "no opportunity" to see the school (id.). Further, the parent asserted that the district had not developed an IESP for the student despite her request for homeschooling (id. at p. 1). For relief, the parent requested an award of special education teacher support services (SETSS), OT, PT, and speech-language therapy for the 12-month 2025-26 school year (id. at p. 2).[3] In addition, the parent requested a neuropsychological evaluation as a request for an independent educational evaluation (IEE) (id.). Lastly, the parent requested compensatory education services for any services not provided to the student for the 2025-26 school year (id.).[4]
In a due process response, the district generally denied the material allegations contained in the due process complaint notice and attached a June 13, 2025 prior written notice of recommendation which summarized recommendations from a May 6, 2025 CSE meeting (see Dist. Response to Due Process Compl. Not.).[5]
A prehearing conference convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on December 2, 2025 (see Pre-Hr'g Conf. Summ. & Order). In an interim decision dated December 4, 2025, the IHO denied the parent's request for pendency (Interim IHO Decision at p. 6). The IHO stated that the parent representative emailed her on four separate occasions requesting pendency and that the requests were "one sentence long" and were accompanied by a pendency implementation form and the summary page of the June 2023 IEP (id. at p. 3; see IHO Ex. II). In response to the parent's requests for pendency, the district did not dispute that pendency lay in the June 2023 IEP but argued that, since the student was homeschooled and the parent selected her own providers, the district did not have to fund the unilaterally obtained services as pendency (Interim IHO Decision at p. 3; IHO Ex. III at pp. 1-2). The IHO found that "without the full IEP" she was unable to determine the details or the June 2023 IEP programming, i.e., "group versus individual, language issues and other details" (Interim IHO Decision at pp. 3, 5). The IHO found that, because she did not have the complete June 2023 IEP, the parent's request for pendency was denied (id. at p. 6).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in denying the student pendency.[6] The parent asserts that the last agreed upon program for her daughter is contained in the June 2023 IEP and the one page summary submitted to the IHO was sufficient for purposes of describing the pendency placement. Additionally, the parent asserts that the district made an argument to the IHO that the student has an IESP and, therefore, was not entitled to pendency, which the parent argues was misplaced, as the student had an IEP.
In an answer, the district generally denies the material allegations contained in the request for review. The district argues that the request for review should be dismissed as untimely. The district asserts that the interim IHO decision was dated December 4, 2025, and therefore, the parent was required to serve the request for review no later than January 13, 2026 but did not serve the request for review until January 14, 2026. The district submits additional evidence with respect to service of the request for review upon the district.[7] In addition, the district contends that the IHO properly denied pendency as the parent failed to develop the hearing record with respect to the student's "pendency placement."
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 IHO's interim decision is dated December 4, 2025; thus, the parent would have had until January 13, 2026 to personally serve the district with a verified request for review (see Interim IHO Decision at p. 6; 8 NYCRR 279.4[a], 279.11[b]).[8] The parent's advocate served the request for review upon the district by email on January 14, 2026, one day after the deadline (see Parent Aff. of Service). In addition to an affidavit of service, the parent's advocate submitted an email titled "Proof of service receipt," dated January 14, 2026 at 10:45 am.
With its answer, the district filed an attorney declaration made under the "penalties of perjury" by an attorney who is a team leader of the appeals division of the district's special education unit (declarant) (SRO Ex. 3 ¶ 2). The declarant stated that the district first received communication from the parent's advocate regarding the appeal by email on January 13, 2026 at 6:52 p.m. by which the advocate served the notice of intention to seek review (SRO Exs. 2; 3 ¶ 4). Additionally, the declarant stated that the January 13th email did not contain any attachments other than the notice of intention to seek review (see SRO Exs. 2; 3 ¶ 4). Consistent with the affidavit of service filed with the parent's request for review, the declarant stated that the district received an email from the parent's advocate on January 14, 2026 at 10:45 a.m. serving the notice of request for review and request for review (SRO Exs. 1; 3 ¶ 5; Parent Aff. of Serv.). The declarant stated that the "only other communication" with the parent's advocate was an email on January 22, 2026 confirming the representation of the parent and requesting consent for email service (SRO Ex. 3 ¶ 6).
The parent did not file a reply to respond to the district's assertion that the appeal is untimely. Moreover, the parent's request for review did not acknowledge that the request for review was not timely served and did not specify any cause for the late filing as required by State regulation which specifically states that the reason for a late filing "shall be set forth in the request for review" (8 NYCRR 279.13). As the parent has failed to assert good cause—or any reason whatsoever—in her request for review for the failure to timely initiate the appeal from the IHO's decision (see 8 NYCRR 279.13), there is no basis on which to excuse the parent's failure to timely appeal the IHO's decision (see 8 NYCRR 279.13; see alsoB.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"]).
Based on the foregoing, 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; accordingly, 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]).
VI. Conclusion
Having exercised my discretion to dismiss the request for review because the parent failed to timely initiate the appeal pursuant to State regulations, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] 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 athttps://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. SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii]; see Educ. Law § 4410[1][k]).
[2] According to the parent, she had initiated two previous impartial hearings regarding the student's program and placement (see IHO Ex. I at p. 1).
[3] 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.
[4] The due process complaint notice requested compensatory services for those services not provided during the 2023-24 school year; however, it appears that this was a typographical error as the allegations in the complaint pertain to the 2025-26 school year (see IHO Ex. I at pp. 1-2).
[5] According to the prior written notice, the May 2025 CSE recommended a 12-month program in a 12:1+1 special class in a district specialized school with one 30-minute session per week of individual counseling, one 30-minute session per week of group counseling, three 30-minute sessions per week of individual OT, three 30-minute sessions per week of individual PT, and three 30-minute sessions per week of individual speech-language therapy (Dist. Response to Due Process Compl. Not. at pp. 3-4). The May 2025 CSE also recommended a full-time individual paraprofessional for the student for health, orientation, and mobility (id.).
[6] The parent submits a copy of the June 2023 IEP with the request for review. Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer'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, due to the procedural disposition of this matter, and, as a matter within my discretion, the June 2023 IEP is not necessary to render a decision and will not be considered.
[7] The district submits the following additional evidence: a January 14, 2026 email chain confirming service of the request for review by the parent on the district (SRO Ex. 1); a January 13 and 14, 2026 email chain confirming service of the notice of intention to seek review by the parent on the district (SRO Ex. 2); and an affirmation of the district's attorney regarding service of the request for review (SRO Ex. 3). As previously stated, additional evidence may be considered in an appeal by the SRO if it was unavailable at the time of the impartial hearing and is necessary in order to make a decision (see Application of a Student with a Disability, Appeal No. 08-030). Here, the additional evidence submitted with the answer could not have been presented at the impartial hearing and is necessary to consider in order to render a decision about the timeliness of the parent's appeal. The district's additional evidence shall be referenced as marked (i.e., SRO Exs. 1-3).
[8] Although the parent did not timely appeal from the IHO's interim decision, the parent may include an appeal of the IHO's interim decision on pendency with an appeal from the IHO's final decision (see Application of a Student with a Disability, Appeal No. 18-027).