STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-105
Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability
Appearances:
Liz Vladeck, General Counsel, attorneys for petitioner, by Frank J. Lamonica, Esq.
Gulkowitz Berger, LLP, attorneys for respondent, by Shaya M. Berger, 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 district) appeals from a decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) son and ordered it to fund the student's private services delivered by Kids Domain Child Care Center (Kids Domain) for the 2025-26 school year. The appeal must be dismissed.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programming for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
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, a CSE convened on November 14, 2024, found that the student was eligible for special education as a student with a speech or language impairment, and developed an IESP for the student with a projected implementation date of November 28, 2024 (Parent Ex. B at p. 1).[1] The November 2024 CSE recommended that the student receive three periods per week of group special education teacher support services (SETSS), one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, and one 30-minute session per week of group counseling services (id. at p. 6).[2]
On May 6, 2025, the district confirmed receipt of the parent's notice requesting that the district provide the student with special education services for the 2025-26 school year (Parent Ex. C).
The hearing record includes notices dated August 12 and August 18, 2025, respectively, by which the district informed the parent of the providers who would deliver the student's SETSS and speech-language therapy (Dist. Exs. 8-9). The notices indicated that, if the parent did not choose to accept the services from the identified providers or, in the case of SETSS, use a voucher provided to select another provider, the student could receive the services at a district public school "afterschool/weekend site[]" (Dist. Exs. 8-9).
On August 14, 2025, the parent signed an agreement with Kids Domain for the provision of three periods per week of SETSS and two 30-minute sessions per week of speech language therapy for the 2025-26 school year, beginning September 1, 2025 (Parent Ex. D). According to the director of Kids Domain, the company charged rates of $200 per hour for SETSS and $150 per half-hour for speech-language services (Parent Ex. E ¶ 9).[3] The student was parentally placed for the 2025-26 school year with Kids Domain providing the student with three 60-minute sessions per week of SETSS and two 30-minute sessions per week of speech language services (Parent Ex. E ¶ 7; Dist. Ex. 10 at p. 2).
A. Due Process Complaint Notice
In a due process complaint notice dated September 15, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) and equitable services for the 2025-26 school year (Parent Ex. A at pp. 1-2). The parent asserted that the November 2024 IESP was appropriate to meet the student's unique needs, but the district failed to provide the student with the recommended SETSS, speech-language therapy, and counseling for the 2025-26 school year, requiring the parent to find her own providers for the student's services (id.). As relief, the parent requested an award of services from the November 2024 IESP pursuant to pendency, an award ordering the district to directly fund services delivered by the parent's chosen providers, and an award of compensatory education for missed services (id. at p. 2).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 3, 2025 (Tr. pp. 1-43). In a decision dated December 14, 2025, the IHO found that the student was entitled to pendency based on the November 2024 IESP, that the district denied the student a FAPE for the 2025-26 school year, that the parent met her burden of proving that the services provided by Kids Domain were appropriate to meet the student's unique needs, that equitable considerations supported the parent's requested relief, and that the student was entitled to an award of eight hours of compensatory counseling for missed services (Dec. 14, 2025 IHO Decision at pp. 1, 4, 6, 9, 10, 17, 19). For the 2025-26 school year, the IHO awarded funding of SETSS at a rate not to exceed $200 per hour by a qualified provider of parent's choosing and speech-language therapy at a rate not to exceed $150 per 30 minutes by a qualified provider (id. at p. 18). The IHO also directed the district to begin providing the student with counseling services on December 15, 2025 and to provide them for the remainder of the 2025-26 school year (id. at p. 19).
On December 17, 2025, the IHO issued a "Corrected Findings of Fact and Decision" which contained the same legal standard, findings, and substantially the same orders as the December 14, 2025 decision (compare Dec. 14, 2025 IHO Decision, with Dec. 17, 2025 IHO Decision).[4]
IV. Appeal for State-Level Review
The parties' familiarity with the particular issues raised in the district's request for review is presumed and the issues will not be recited here in detail. Generally, the primary issues raised by the district on appeal are whether the IHO erred by finding that the district denied the student a FAPE for the 2025-26 school year; that the parent met her burden of proving that the services provided by Kids Domain were appropriate; equitable considerations did not warrant a reduction to the rates charged by Kids Domain for SETSS and speech-language therapy; and that the student was entitled to an award pursuant to pendency.
The parent answers, arguing that the IHO's decision should be affirmed in its entirety.
V. Discussion - Timeliness of Request for Review
As a threshold matter, it must be determined whether or not the district'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 failed to initiate the appeal in accordance with the timelines prescribed in Part 279 of the State regulations. The district was required to serve the request for review upon the parent no later than January 23, 2026, 40 days from the date of the December 14, 2025 IHO decision (see 8 NYCRR 279.4[a]). According to the district's proof of service, the parent waived personal service and agreed to service via email to her attorney (Jan. 27, 2026 Declaration of Service). However, the district did not effectuate service until January 26, 2026 and January 27, 2026 (Jan. 27, 2026 Dist. Declaration of Service), which renders the request for review untimely.[5]
Additionally, the district has failed to assert good cause in its request for review for the failure to timely initiate the appeal from the IHO's decision. In the request for review, the district indicates that the IHO's decision was dated December 17, 2025 (Req. for Rev. at pp. 1, 2). The district's request for review omits any mention of the IHO's initial decision dated December 14, 2025 (see Req. for Rev.).
Although in this case, the hearing record does not contain any clarification from the IHO as to why a second decision was issued; regardless, the district may not rely on the date of the second decision to calculate the time to appeal (compare Dec. 14, 2025 IHO Decision, with Dec. 17, 2025 IHO Decision). 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 her December 14, 2025 decision, her jurisdiction over the matter ended and the 40-day timeline for an appeal began to run.[6] 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. Moreover, the correction made in this instance did not change those aspects of the IHO's decision from which the district appeals.
Thus, because the district failed to properly initiate this appeal by effectuating timely service upon the parent, 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 district failed to timely initiate the appeal, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] 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.
[3] The parent's contract with Kids Domain set forth the rate of $200 per hour for SETSS; however, the rate for speech-language services was not identified in the contract (Parent Ex. D).
[4] Having compared the December 14, 2025 IHO Decision to the December 17, 2025 IHO Decision, it appears that the only differences between them are the dates of the decisions on pages 1 and 19, that the latter decision is titled "Corrected Findings of Fact and Decision" instead of "Findings of Fact and Decision," and that, in the ordering clause, the corrected decision provides that the district shall provide counseling services from December 15, 2025 through June 26, 2026 correcting what appears to have been a typographical error in the initial decision, which directed the district to provide counseling services "commencing December 15, 2025, until June 26, 2025" (compare Dec. 14, 2025 IHO Decision, with Dec. 17, 2025 IHO Decision).
[5] The district's declaration of service, dated January 27, 2026, affirms that the district served the verified request for review upon the parent's counsel "on January 26, 2026" via "electronic mail" and then served the notice of request for review on the parent's attorney "to the same email address on January 27, 2026" (Jan. 27, 2026 Declaration of Service). The declarant notes that "[t]he Notice of Request for Review should have been included with the Request for Review, but was unintentionally and/or mistakenly not included with the Request for Review" (id.).
[6] 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]).