STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-198
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 Kashif Forbes, 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 Alpha Student Support (Alpha) for the 2023-24 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 8, 2021, and, after finding the student eligible for special education services as a student with a speech or language impairment, developed an IESP with a projected implementation date of November 23, 2021 (Dist. Ex. 9 at p. 1).[1], [2] The November 2021 CSE recommended that the student receive four periods per week of direct, group special education teacher support services (SETSS) in Yiddish and two 30-minute sessions per week of individual speech-language therapy in Yiddish (id. at p. 13).
A CSE convened on November 30, 2022, continued to find the student eligible for special education services as a student with a speech or language impairment, and developed an IESP with a projected implementation date of February 22, 2023 (Dist. Ex. 8 at p. 1). The November 2022 CSE continued to recommended that the student receive four periods per week of direct, group SETSS in Yiddish but removed the recommendation for speech-language therapy (compare Dist. Ex. 8 at p. 6, with Dist. Ex. 9 at p. 13).
On a district form dated and signed by the parent on May 28, 2023, the parent indicated that she placed the student in a nonpublic school at her own expense and requested that the district continue to provide special education services to the student for the following school year (Parent Ex. E at 1). On the same day, the parent, through her lay advocate, emailed the form to the district (id. at p. 2).
On September 1, 2023, the parent entered into an agreement with Alpha to provide services to the student during the 2023-24 school year (see Parent Ex. D). According to the agreement, Alpha agreed to "make every effort to implement the recommended services" with suitable qualified providers for the 2023-24 school year (id. at p. 1). The agreement indicated the recommended services were "SETSS, Direct Service, Group Service, Yiddish, 4 periods per week" and two 30-minute sessions per week of "[s]peech-[l]anguage [t]herapy, [i]ndividual [s]ervice, Yiddish" (id.). According to the agreement, Alpha intended to provide "SETSS/SEITS" for the 2023-24 school year at a rate of $195 per hour and the parent would "retain counsel and file a due process complaint [notice] in [an attempt] to obtain funding" for the services provided by Alpha (id. at p. 2).
A. Due Process Complaint Notice
In a due process complaint notice dated July 6, 2025, the parent, through her lay advocate, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year. The parent alleged that the district failed to convene a CSE to develop an IESP for the student for the 2023-24 school year and that the recommended program and related services in the student's November 2021 IESP were appropriate for the student for the 2023-24 school year but that the district did not contact her regarding who would provide the recommended services, and that she was "left with no choice but to locate and secure private providers" (id. at pp. 1, 3). The parent argues that "privately appointed providers" were appropriate to meet the student's needs and that equitable considerations weighed in her favor (id. at p. 5). Among other relief, the parent requested for the district to fund the privately obtained SETSS services at the provider's rate and provide a bank of compensatory education for any speech-language therapy sessions the student missed but was otherwise entitled to at a reasonable market rate with a bilingual speech provider (id. at p. 3, 5).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on August 6, 2025 and concluded the same day (Tr. pp. 1-39).
In a decision dated December 30, 2025, the IHO found that it was undisputed that the student was entitled to services pursuant to the November 30, 2022 IESP, that the district did not allege nor submit any evidence to prove the services were implemented, and, therefore, it was undisputed that the district failed to implement the services recommended in the November 2022 IESP (IHO Decision at p. 2). Accordingly, the IHO determined the district failed to provide the student with a FAPE for the 2023-24 school year and as a result the parent was entitled to relief (id. at p. 3).
Turning next to the district's argument that the CSE recommended group SETSS and that the student received individual services from Alpha, the IHO determined that there was no evidence in the hearing record that if SETSS were implemented on a 1:1 basis that the student would not receive an appropriate educational benefit (IHO Decision at p. 3). The IHO further found that the parent's unilateral program for the student was appropriate because it was the program recommended by the district in the November 2022 IESP, and the district had not put forth any evidence demonstrating the appropriateness of the November 2022 IESP, the CSE's meaning of SETSS, or how the program was intended to be implemented (id.). The IHO also addressed the district's argument that the parent did not properly request services by June 1, 2023 and found that there was a June first notice dated May 28, 2023 admitted into evidence but there was no proof of its mailing; however, the IHO found it was the district's burden to demonstrate the parent did not file the notice (id.). Regarding the district's argument that the parent failed to demonstrate progress, the IHO found that the parent submitted a progress report indicating that the student had made progress with his SETSS delivered by Alpha (id.). Accordingly, the IHO ordered the district to fund/reimburse the parent the cost of four periods of SETSS provided to the student during the entire 2023-24 school year by a provider of the parent's choosing at a rate to be determined by the district's implementation unit (id. at p. 4).
IV. Appeal for State-Level Review
The district appeals, alleging that the IHO erred in determining the parent appropriately requested services by June 1, 2023; erred in finding that the SETSS provided to the student during the 2023-24 school year by Alpha were appropriate; and erred by failing to reduce Alpha's SETSS rate to a rate between $85 and $127.70 per hour.
The parent has not appeared or interposed an answer in this matter.
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 failed to initiate the appeal in accordance with the timelines prescribed in Part 279 of the State regulations. The IHO's decision is dated December 30, 2025; thus, the district had until February 9, 2026 to personally serve the parent with a verified request for review (8 NYCRR 279.4[a], 279.11[b]).[3]
By letter to the Office of State Review (OSR) dated February 10, 2026, the district sought guidance as to how to effectuate alternate service on the parent of a notice of intention to seek review and a verified request for review, as it had unsuccessfully "made diligent attempts" to personally and electronically serve the parent (Feb. 10, 2026 Dist. Letter at p. 1).[4] According to the district, on January 15, 2026 via email, it contacted the parent's lay advocate who had represented the parent during the impartial hearing who responded that she was not representing the parent on appeal (id.).[5] The district attached to its February 10, 2026 letter a copy of the January 2026 email exchange between the district and lay advocate, which confirmed the district sent an email on January 14, 2026 to the parent's lay advocate indicating it was filing an appeal and also asking whether she was representing the parent on appeal and would accept service by email on behalf of the parent (id. at p. 3). On January 15, 2026, after the lay advocate failed to respond, the district sent a follow-up email which the lay advocate responded to the same day stating "I am not acting on behalf of the parent for the appeal" (id.). The district also represented in its February 10, 2026 letter to OSR that on January 15, 2026, the district emailed the parent to inquire about consenting to electronic service but on January 18, 2026, the parent declined consent for email service (Feb. 10, 2026 Dist. Letter at pp. 1, 5).
The district further advised OSR in its February 10, 2026 letter that it attempted to effectuate service on the parent personally at her last known address, but the process server was informed that the parent did not live at the address and was given a potential address for the parent (Feb. 10, 2026 Dist. Letter at p. 1). According to the district, the process server attempted to serve the parent at the newly obtained address but was informed by the tenant as well as the management office in the building that the parent was not known in the building (id.). The district attached to its February 10, 2026 letter emails between the district and process server and an affirmation of attempted service notarized February 10, 2026 to confirm multiple attempts were made at personal service in early February 2026 up through and including February 9, 2026 (id. at pp. 2, 6-9). The district confirmed with the process service that the verified request for review that was due to be served by February 9, 2026 (id. on p. 8).
The undersigned granted permission for alternate service upon the parent that included specific directives regarding the method of service that were to be completed (Feb. 10, 2026 OSR Letter). On February 19, 2026, the district filed with OSR a notice of intention to seek review dated February 2, 2026, which included an additional copy of the February 10, 2026 affirmation of attempted service, and an "[a]ffirmation of [s]ervice 'AFFIX ONLY,'" dated February 18, 2026, that indicated that a notice of intention to seek review, a notice of request for review, and a verified request for review were served upon the parent by affixing copies to the door of the parent's last residence on February 18, 2026 at 6:44 a.m. It was also reflected that the process server made further attempts at personal service on February 14, 2026 at 5:27 p.m. and February 16, 2026 at 2:31 p.m. Also attached to the notice of intention to seek review was an affirmation of service by mail dated February 18, 2026, which reflected that a copy of a notice of intention to seek review, notice of request for review, and verified request for review were mailed via first class mail on February 18, 2026 to the parent. It was noted that the district was instructed to mail the pleadings and a copy of the February 10, 2026 letter granting alternate service via certified mail but the district mailed it via first class mail to the parent. There is no indication that the February 10, 2026 letter granting alternate service was also sent to the parent via mail.
A declaration of service dated February 12, 2026 was also attached, reflecting that an attorney for the district served a notice of intention to seek review, notice of request for review, verified request for review, and a copy of the February 10, 2026 letter granting alternate service, on the parent via mail on "February 11, 2025" (Feb. 12, 2026 Declaration of Service).[6] The declaration of service does not indicate whether the pleadings and the February 10, 2026 letter granting alternate service were mailed via certified mail as directed by the undersigned.
A notice of request for review, a verified request for review, and a declaration of service were also filed with OSR on February 19, 2026. The declaration of service is the same February 12, 2026 declaration of service as described above.
By letter dated February 20, 2026 and received by OSR on February 23, 2026, the district filed additional copies of the pleadings and supporting documents previously filed on February 19, 2026, in addition to a declaration of service dated February 20, 2026, as the district indicated that it was "unclear whether it was required to submit a declaration of service for providing the [parent's] last legal representative with courtesy cop[ies]" of the pleadings, supporting documents, and February 10, 2026 letter granting alternate service, and so the district resubmitted the documents with the new declaration of service "[o]ut of an abundance of caution" (Feb. 20, 2026 Dist. Letter). The declaration of service dated February 20, 2026 indicates that an attorney with the district served a notice of intention to seek review, notice of request for review, verified request for review, and copy of the February 10, 2026 letter granting alternate service on the parent's previous representative via mail on "February 20, 2025" (Feb. 20, 2026 Declaration of Service at p. 1).[7]
As noted above, review of the IHO's decision shows the time to complete service of the appeal upon the parent could permissibly have been made as late as Monday February 9, 2026. This case involved service by alternate means under 8 NYCRR 279.4[c][2] and the following subsection specifies that all of the actions required for alternate service must be completed within the deadline (8 NYCRR 279.4[d]). In light of the above, I find that the affixing portion of the required actions that the undersigned directed for alternate service of the verified request for review was completed on February 18, 2026, and thus service of this appeal was at least nine days late. Additionally, the declaration of service dated February 12, 2026 reflects that the mailing portion was effectuated on February 11, "2025," approximately one year earlier than the events in this matter. While it is apparent that the district's declaration of service indicating that the mailing element of the alternate service was effectuated in 2025 was a typographical error, even that component of the alternate service was nevertheless completed at least two days late. Thus while the district requested permission to effectuate service by an alternate method, did not complete any of the required actions or offer good cause for its untimely service in the request for review as required by 8 NYCRR 279.13. While the district originally attempted a less formal way of initiating the appeal by obtaining consent for electronic service from the parent in January 2026, 10 days before the notice of intention to seek review was due to be served, the district was steadily unsuccessful in its efforts through both informal and formal means and did not seek permission from the undersigned to effectuate alternate service until after the request for review was due to be served and the appeal was already untimely (Feb 10, 2026 Aff. of Attempted Service; see Feb. 10, 2026 Dist. Letter). The objective of seeking alternate service methods for a request for review is to complete timely service when barriers to personal service in accordance with Part 279 have emerged that a school district cannot overcome after making reasonably diligent efforts.
Based on the foregoing, 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; 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 alternatively served one day late, after an unsuccessful attempt at personal service on the last day for service]; 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]).
VII. Conclusion
Having exercised my discretion to dismiss the request for review because the district failed to timely initiate the appeal pursuant to State regulations and there being no good cause to excuse the late request for review, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] The hearing record contains duplicative exhibits. Both the parent and the district offered the November 2021 and November 2022 IESPs into evidence (see Parent Exs. B, C; Dist. Exs. 8, 9). For purpose of this decision, the district exhibits will be cited.
[2] 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]).
[3] Forty days after the date of the IHO decision in this matter fell on Sunday February 8, 2026, thus, the district had until the following Monday, February 9, 2026, to personally serve the parent (8 NYCRR 279.11[b]).
[4] The February 10, 2026 district letter is not paginated. For purposes of this decision, the pages will be cited by reference to their consecutive pagination with the first page as page one (Feb. 10, 2026 Dist. Letter at pp. 1-15).
[5] In its February 10, 2026 letter, the district mistakenly refers to the lay advocate as the parent's attorney (Feb. 10, 2026 Dist. Letter at pp. 1, 8; see Tr. p. 4; Parent Ex. A at p. 6).
[6] It appears the February 12, 2026 declaration of service contains a typographical error and that the year the document was placed in the mailbox should have read 2026, not 2025 (see Feb. 12, 2026, Declaration of Service).
[7] Again, the declaration of service appears to contain a typographical error and the year should be 2026 (Feb. 20, 2026 Declaration of Service).