STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-241
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.
Law Office of Philippe Gerschel LLC, attorneys for respondent, by Philippe Gerschel, 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) daughter and ordered it to fund the student's private services for the 2025-26 school year. The parent cross-appeals from that portion of the IHO's decision which did not address her request for compensatory pendency services. The appeal must be dismissed. The cross-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 March 19, 2025, found the student eligible for special education services as a student with a speech or language impairment, and developed an IESP for the student with a projected implementation date of September 1, 2025 (Parent Ex. B at p. 1).[1] The March 2025 CSE recommended that the student receive two periods per week of direct, group special education teacher support services (SETSS) in Yiddish and two 30-minute sessions per week of group speech-language therapy in Yiddish (id. at p. 12). On March 25, 2025, the district sent the parent a prior written notice of the recommendations contained in the March 2025 IESP (Dist. Exs. 4; 7 at pp. 2-3).
On May 21, 2025, the parent signed a form letter indicating she was placing the student in a nonpublic school at her own expense for the 2025-26 school year and wanted special education services to be provided by the district (Parent Ex. C at p. 3). On May 30, 2025, the district confirmed receipt of the parent's letter (id. at pp. 1-2).
On September 14, 2025, the parent signed an agreement with a private speech language pathologist for the provision of two 30-minute sessions per week of "Speech Therapy services" at a rate of $300 per hour (Parent Exs. E at p. 1; H at ¶¶ 2, 6).
In a letter dated November 17, 2025, the parent notified the district that she was unable to locate providers for the district's recommended services at the district's standard rate and would have "no choice but to make efforts to implement the IESP on [her] own" and seek reimbursement or direct funding from the district for those services (Parent Ex. D at p. 2).
A. Due Process Complaint Notice
In a due process complaint notice dated November 17, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 school year (Parent Ex. A). The parent requested pendency based on the March 2025 IESP (id. at p. 2). Further, the parent argued that "[w]ithout supports, the parental mainstream placement [wa]s untenable" (id.). As relief, the parent requested an award ordering the district to directly fund services delivered by the parent's chosen providers, and compensatory education for those SETSS and related services not provided to the student during the 2025-26 school year (id. at p. 3).
In a response to the parent's due process complaint notice dated November 25, 2025, the district generally denied the parent's material allegations, asserted affirmative defenses, and attached a prior written notice of recommendation pertaining to the March 2025 IESP (Dist. Ex. 5).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 14, 2025 (Tr. pp. 1-21). In a decision dated January 15, 2026, the IHO found that the district did not provide sufficient evidence to sustain its burden and, therefore, denied the student a FAPE for the 2025-26 school year (IHO Decision p. 7).[2]
Regarding the parent's unilaterally obtained services, the IHO found "no actual dispute" with respect to their appropriateness because they were "identical" to those services recommended in the March 2025 IESP (IHO Decision at p. 7). The IHO found that "the weight of the evidence" demonstrated that the student's needs were addressed by the unilaterally obtained services and that they were "reasonably calculated to enable the child to receive educational benefits" (id. at pp. 7-8). Accordingly, the IHO found that the parent's unilaterally obtained services were appropriate (id. at p. 8).
Next, the IHO held that a remedy for a district's failure to provide equitable services was "similar" to the remedy for a district's failure to offer the student a FAPE under the IDEA, which could include tuition reimbursement, compensatory education, or other declaratory/injunctive relief (IHO Decision at p. 8). The IHO then stated that the district was required to address its burden by setting forth an appropriate compensatory remedy, but failed to do so in this matter (id.). Without further discussion, the IHO addressed equitable considerations and found that the parent cooperated with the district and did not interfere with the district's obligation to provide the student with a FAPE (id.). The IHO was not persuaded by the district's proffered evidence of the unreasonableness of the provider's rate, noting that the district's submitted documents were not supported by testimonial evidence which were necessary because the documents by themselves "[took] no position" with regard to what a reasonable market rate should be in the instant matter (id.). Accordingly, the IHO found that the district was responsible for providing the services recommended in the IESP and that the district must begin providing those services and fund them until it implemented the IESP (id. at p. 9). The IHO denied any other relief requested by the parent (id.).
As relief, the IHO ordered the district to provide the student with equitable services for the 2025-26 school year and, until such time as it does implement services, fund two 30-minute sessions of speech-language therapy per week to be provided by a licensed speech pathologist or other certified speech therapist at the rate of $300 per hour, upon submission of invoices for services and a valid contract (IHO Decision at p. 10).
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 on appeal are that the IHO failed to use the correct analysis in determining the appropriateness of the parent's unilaterally obtained services, erred in finding that the speech-language therapy services obtained by the parent were appropriate, and erred in failing to consider the district's evidence in evaluating an appropriate rate for the services. Further, the district argues that the IHO erred in finding that the district waived its right to cross-examine the parent's witness.[3]
The parent submits an answer and cross-appeal, asserting that the IHO erred in not addressing the student's entitlement to pendency services.
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 rendered the decision on January 15, 2026 (IHO Decision at pp. 1, 10). The district was therefore required to serve the verified request for review on the parent no later than Tuesday, February 24, 2026 (see 8 NYCRR 279.4, 279.11[b]).
By letter to the Office of State Review (OSR) dated February 24, 2026, the district sought "direction" on how to effectuate alternate service on the parent of a notice of intention to seek review and a verified request for review (see 8 NYCRR 279.4[c][2]; Feb. 24, 2026 Dist. Correspondence at p. 1). In its letter, the district stated that it "made diligent attempts to personally serve the parent" at her last known address (Feb. 24, 2026 Dist. Correspondence at p. 2).
Attached to the district's correspondence were copies of two emails from the district to the parent, dated February 3 and 4, 2026, wherein the district informed the parent that it was appealing this matter, asked the parent for consent to serve her with certain documents via email, and informed her that if she did not respond she would be served personally at her "home" (id. at pp. 3-5).[4] There was no response from the parent included with the emails (id.).
An affirmation of attempted service, dated February 24, 2026, indicates that a licensed process server attempted to personally serve the notice of request for review and verified request for review on the parent as follows: on February 18, 2026 at 7:41 PM; February 19, 2026 at 1:05 PM; and February 21, 2026 at 10:29 AM (Affirmation of Attempted Service). On each occasion, the process server indicated that no one answered the door at the residence (id.).
On February 26, 2026, this office responded to the district's February 24, 2026 letter and granted permission for alternate service on the parent (Feb. 26 2026 OSR Letter). The district was instructed to serve the parent as follows: by affixing the notice of intention to seek review and request for review and any supporting papers to the door of the parent's last known residence in an envelope with the language "personal and confidential" without any indication on the envelope that the contents was from an attorney; sending a copy of the February 26, 2026 letter, notice of intention to seek review and request for review, and any supporting papers to the parent's last known address by certified mail, return receipt requested; and filing an affidavit of service demonstrating that the alternative service was completed (id.).
Thereafter, in a declaration of service dated March 4, 2026, the attorney for the district indicated that he served a copy of the February 26, 2026 OSR letter, notice of intention to seek review, notice of request for review, and verified request for review on the parent by certified mail, return receipt requested to the parent's residence on March 2, 2026 (Declaration of Service).[5] The March 4, 2026 declaration of service further indicated that he served a copy of these documents by first class mail on the parent's counsel (id.). Additionally, in an affirmation of personal service sworn to on March 3, 2026, a process server affirmed that on March 2, 2026, he personally served a copy of the February 26, 2026 OSR letter, notice of intention to seek review, notice of request for review, and verified request for review on the parent (March 3, 2026 Affir. of Personal Service). Both the declaration of service and affirmation of personal service were filed with the request for review with this office on March 5, 2026.
As discussed above, the district did not contact this office until February 24, 2026, the last day on which to timely serve the request for review. Accordingly, it is unclear how the district expected to complete service prior to the deadline. Service was completed on the parent, personally, and through the alternate means provided for in the OSR letter, on March 2, 2026 (March 3, 2026 Affir. of Personal Service). As the last day for timely service was February 24, 2026, the district's March 2, 2026 personal service on the parent was late. Furthermore, the district did not assert an explanation for the untimely service in the request for review and, accordingly, failed to raise good cause to excuse the district's failure to timely effectuate personal service of the request for review on the parent (8 NYCRR 279.13; see New York City Dept. of Educ. v S.H. ex rel. D.H., 2014 WL 572583, at *1 [SDNY Jan. 22, 2014] [upholding SRO's decision to reject petition as untimely for being served one day late and noting that it was foreseeable that difficulties might arise when attempting to effectuate service on the day service was due]).
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 request for review must be dismissed because the district failed to timely initiate the appeal and there being no good cause presented, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Dated: May 6, 2026
Steven Krolak
STATE REVIEW OFFICER
Footnotes
[1] The hearing record contains duplicate copies of the March 19, 2025 IESP (compare Parent Ex. B, with Dist. Ex. 3). For ease of reference, this decision will cite to the parent's exhibit.
[2] On December 19, 2025, the district made a motion to dismiss for a lack of subject matter jurisdiction which the IHO denied during the impartial hearing (IHO Decision at p. 2; Tr. p. 12; see IHO Ex. IV).
[3] The district submitted two documents to be considered as additional evidence in connection with its argument that the IHO improperly determined that the district waived its right to cross-examine the parent's witnesses: Proposed SRO exhibit 1 – January 6, 2026 email from the parent to the IHO and the district with her disclosures; and Proposed SRO exhibit 2 – January 7, 2026 email from the district to the IHO and parent with its disclosures. State regulation requires that, in addition to exhibits and the transcript of the proceedings, "all briefs, arguments or written requests for an order filed by the parties for consideration by the [IHO]," as well as "all written orders, rulings or decisions issued in the case including an order granting or denying a party's request for an order" are part of the hearing record (8 NYCRR 200.5[j][5][vi]). These emails should have been included in the hearing record because its content falls within the categories required to be made part of the hearing record as per the regulation cited above.
[4] Prior to the emails sent to the parent, on January 30, 2026, the district sent an email to parent's counsel inquiring whether counsel would be representing the parent in connection with the district's appeal, whether the parent would agree to forgo personal service, and if the parent authorized counsel to accept email service on the parent's behalf; however, the district's February 24, 2026 letter indicated that parent's counsel never responded (Feb. 24, 2026 Dist. Correspondence at pp. 1, 6).
[5] The declaration of service contained the date, March 2, 2025, but it appears this was a typographical error, and the date should be March 2, 2026 (Declaration of Service).