STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-199
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 those parts of a decision of an impartial hearing officer (IHO) which ordered the district to fund a bank of hours of compensatory education services to respondent's (the parent's) son to remedy its failure to provide the student with equitable services for the 2025-26 school year; and ordered it to provide funding for the student's pendency services. 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 September 11, 2024, 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 September 11, 2024 (Dist. Ex. 5 at pp. 1, 21).[1],[2] The September 2024 CSE recommended that the student receive seven periods per week of direct group SETSS in Yiddish, one 30-minute session per week of individual speech-language therapy in Yiddish, one 30-minute session per week of group speech-language therapy in Yiddish, one 30-minute session per week of individual occupational therapy (OT) in English, and one 30-minute session per week of group OT in English (id. at p. 18).[3]
By prior written notice dated September 11, 2024, the district summarized the recommendations of the September 2024 CSE (Dist. Ex. 6 at pp. 1-3).
On a district form dated and signed by the parent on March 19, 2025, 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 2025-26 school year (Parent Ex. E at p. 2).
In a 10-day notice letter dated August 18, 2025, an attorney sent a letter to the district indicating that the parent consented to the district implementing all recommended services on the student's September 2024 IESP (Parent Ex. C at p. 2). The letter was written in an unusual manner insofar as it was not on the letterhead of the law firm and was written in the first person as if drafted by the parent, but then included a conformed signature of the parent's attorney and was sent from what appears to be the email address of a non-attorney employee with the law firm (id. at pp. 1-2). The letter also indicated that the parent "ha[d] no way of implementing" the recommended services, and that she "ha[d] no choice but to make efforts to implement the [September 2024] IESP" and seek reimbursement or direct payment from the district (id. at p. 2).
The hearing record includes an agreement with Mount Resources for the provision of "SETSS/SEITS," "to whatever extent possible," for the 2025-26 school year at a rate of $205 per hour (Parent Ex. F at pp. 1-2).[4] It was agreed that the individual would "retain counsel and file a due process complaint [notice] in [an attempt] to obtain funding" for the services provided by Mount Resources (id. at p. 2).
A. Due Process Complaint Notice
In a due process complaint notice dated September 2, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 school year, as the district failed to implement the recommendations of the September 2024 IESP, and the parent was unable to locate special education and related service providers "on []he[]r own accord" (Parent Ex. A at pp. 1, 3). The parent indicated that she reserved her right to ask for compensatory education services for "any periods not provided" during the 2025-26 school year (id. at p. 3). The parent also asserted that the student's pendency program would appropriately be based on a prior unappealed final IHO decision dated May 22, 2025, which, according to the parent, provided that the student receive seven periods per week of group SETSS in Yiddish, one 30-minute session per week of individual speech-language therapy in Yiddish, one 30-minute session of group speech-language therapy in Yiddish, one 30-minute session of individual OT in English, and one 30-minute session per week of group OT in English (id. at pp. 2, 5-6). With respect to relief, the parent asked that the district be ordered to fund the costs of private providers located by the parent at the providers' contracted rates, and that the district be ordered to fund a bank of compensatory SETSS and related services "for the entire 2025-26 school year – or the parts of which were not serviced," at the prospective providers' contracted rates (id. at p. 3).
In a due process response dated September 5, 2025, the district generally denied the allegations in the due process complaint notice, indicated its intent to pursue a motion to dismiss for certain claims, asserted certain affirmative defenses, and attached a supplemental notice that contained information pertaining to the September 2024 IESP (Dist. Ex. 7 at pp. 2-6).
B. Impartial Hearing Officer Decision
An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed on October 2, 2025 (IHO Decision at p. 2). The district submitted a motion to dismiss for lack of subject matter jurisdiction, dated October 2, 2025 (IHO Ex. I).[5]
The IHO issued an interim order on pendency dated October 14, 2025, wherein it was determined that the student's pendency program was appropriately based on the student's September 2024 IESP, which included recommendations that the student receive seven periods per week of group SETSS in Yiddish, one 30-minute session per week of individual speech-language therapy in Yiddish, one 30-minute session per week of group speech-language therapy in Yiddish, one 30-minute session per week of individual OT, and one 30-minute session per week of group OT for the 10-month school year (Interim IHO Decision at p. 1). It was reflected on the interim order that the district agreed to the above pendency program for the student (id.).
An impartial hearing convened before the IHO on October 22, 2025 (Tr. pp. 1-79).[6], [7] The district submitted a written opening statement for the impartial hearing (Dist. Ex. 9).
In a decision dated December 29, 2025, the IHO found that, as there was no dispute that the student was entitled to special education and related services pursuant to the September 11, 2024 IESP, that the district failed to rebut the parent's evidence demonstrating that the district failed to implement the recommendations in the IESP, thereby failing to meet its burden to establish that a FAPE was offered to the student for the 2025-26 school year (IHO Decision at pp. 3-4). The IHO then indicated that a Burlington/Carter analysis would be inappropriate and instead found that a compensatory education analysis would be appropriately applied (id. at pp. 4-6).[8] The IHO found that the district failed to support its contentions that the student's private services charged excessive rates, as the district did not offer market rate comparisons for the 2025-26 school year (id. at p. 6). The IHO found that the hearing record supported the conclusion that the student's private SETSS were not implemented in a manner consistent with the recommendations in the September 2024 IESP, as they were being used to teach the student English, rather than provide the student with the bilingual special education support that he required to make appropriate progress in his academic skills in his native language (id. at p. 7). The IHO denied the parent's request for funding of private SETSS, instead awarding the provision of bilingual SETSS as recommended in the September 2024 IESP (id. at pp. 7-8). The IHO also found that an award of compensatory education services for speech-language therapy and OT would be appropriate, given that no concerns were raised with the parent's requests related to those services (id. at p. 7). The IHO ordered that the district identify and assign, within 30 school days of the date of the decision, appropriately licensed independent providers to provide a bank of compensatory education services of 252 hours of bilingual SETSS, 36 hours of bilingual speech-language therapy, and 36 hours of OT, representing compensatory relief for the 10-month, 2025-26 school year (id. at p. 8). The IHO ordered that the compensatory education services must be utilized by June 20, 2027, otherwise the services would expire (id.).
IV. Appeal for State-Level Review
The district appeals and argues that the IHO erred by ordering the district to provide compensatory SETSS for the student, because the IHO determined that the parent's unilaterally obtained SETSS were not appropriate.[9] The district also contends that the IHO erred in ordering pendency, as the parent unilaterally obtained the student's special education services from a private provider, thereby declining the provision of pendency services from the district. The district also contends that, to the extent that the IHO's award of pendency services could be interpreted as public funding for privately obtained pendency services, the IHO decision should be clarified that it would award only the provision of pendency services.[10]
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 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 IHO's decision is dated December 29, 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]).[11]
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, asserting that it had unsuccessfully "made diligent attempts" to personally and electronically serve the parent (Feb. 10, 2026 Dist. Correspondence at p. 1). Attached to the district's correspondence were copies of two emails from the district to the parent, dated January 13 and 14, 2026, wherein the district informed the parent that it was appealing this matter, asking the parent for consent to serve her with certain documents via email, and then informing the parent that if she did not respond by the close of business on January 14, 2026, that she would be served personally at her last known address (id. at pp. 3-5). There was no response from the parent included with the emails (id.). Also attached to the district's request of alternate service was an affirmation of attempted service dated February 10, 2026, which reflected that the district attempted to personally serve the parent on: February 6, 2026, February 7, 2026, and February 9, 2026. (id. at p. 2).
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 Correspondence at pp. 1-2). The district thereafter filed a notice of intention to seek review with the OSR on February 19, 2026, which was dated February 3, 2026 and included multiple affidavits of additional activity regarding service of process, portions of which may have occurred on February 11, 2026 and other portions on February 18, 2026. It was also reflected that the process server made further attempts at personal service on February 14, 2026. and February 16, 2026. Attached to the verified request for review were additional copies of the February 10, 2026 affirmation of attempted service, a February 18, 2026 "[a]ffirmation of [s]ervice 'AFFIX ONLY'" on February 18, 2026, a February 18, 2026 affirmation of service by mail, February 11, 2026 certified mail receipts, and a February 12, 2026 declaration of service by a district attorney, which stated that service by mail was effectuated on February 11, "2025."
Next, in correspondence dated February 20, 2026, and filed with the OSR on February 23, 2026, the district submitted 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, indicating that it was "unclear whether it was required to submit a declaration of service for providing the [parent's] last legal representative with" courtesy copies of the pleadings, supporting documents, and the February 10, 2026 correspondence 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. Correspondence at p. 1). The declaration of service dated February 20, 2026 reflects that an attorney with the district mailed a notice of intention to seek review, notice of request for review, verified request for review, and copy of the February 10, 2026 correspondence granting alternate service to the parent's previous legal representative on February 20, "2025."
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. The flaw in the district's strategy is that the district had started its attempts to personally serve the parent as envisioned by the practice regulations but then did not attempt to seek an alternate method of service from the undersigned until the appeal was already untimely.
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]).
VI. Conclusion
Having found that the district failed to timely initiate the appeal pursuant to State regulations and there being no good cause as a matter within my discretion to accept a 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 September 2024 IESP into evidence (see Parent Ex. D; Dist. Ex. 5). Review of the parent's exhibit indicates that it is not complete and thus for purposes of this decision, the district exhibit will be cited when referring to the September 2024 IESP. The IHO is reminded that it is her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[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] 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] According to the due process complaint notice, the student's mother requested the impartial hearing (Parent Ex. A at p. 1). The hearing record includes an affidavit in lieu of direct testimony from the student's mother and she also appeared individually for cross-examination during the impartial hearing (Tr. pp. 42-43; Parent Ex. J). Review of the agreement indicates that an individual other than the student's mother entered into the agreement (Parent Ex. F at p. 2).
[5] The IHO orally denied the motion during the impartial hearing on October 22, 2025 (Tr. pp. 5-6; see IHO Decision at p. 2).
[6] A prior IHO issued an undated omnibus docket order with the intention to "set firm expectations of the [p]arties [in order to] to resolve the matter fairly and efficiently" (see generally Undated Omnibus Order).
[7] The IHO indicated that this matter "was originally part of an omnibus docket," but that it was adjourned due to "witness availability" (Tr. p. 4).
[8] The IHO indicated that, despite this, the "rulings would be the same" whether she utilized a compensatory education or Burlington/Carter approach (IHO Decision at p. 7).
[9] The district also notes that the IHO analyzed this claim for relief through a compensatory education services standard, despite also indicating that the result would have been the same if the case was analyzed through the Burlington/Carter framework.
[10] The district's second issue for review as set forth in its request for review appears to contain several typographical errors (see Req. for Rev. ⁋⁋ 7-8). The district's request for review references a September 28, 2023 IESP and a November 8, 2024 IESP, and cites to pages 17-18 of the IHO's decision (id.). The hearing record includes a September 11, 2024 IESP and the IHO's decision is eight pages long (Parent Ex. D; Dist. Ex. 5; IHO Decision at pp. 1-8).
[11] Forty days after the date of the IHO decision in this matter fell on Saturday, February 7, 2026, thus, the district had until the following Monday, February 9, 2026, to personally serve the parent (8 NYCRR 279.11[b]).