STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-246
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. and Marciana Logu, 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 Mount Resources 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 March 4, 2025, found the student eligible for special education services as a student with autism, and developed an IESP for the student with a projected implementation date of March 18, 2025 (see Parent Ex. B).[1], [2] The March 2025 CSE recommended that the student receive six periods per week of group special education teacher support services (SETSS), two 30-minute sessions per week of group speech-language therapy, two 30-minute sessions per week of individual occupational therapy (OT), one 30-minute session per week of group counseling services, and that the parent be provided with one 60-minute session per quarter of individual parent counseling and training (Parent Ex. B at pp. 11-12).[3] By prior written notice dated March 18, 2025, the district noted that the student was parentally placed in a nonpublic school and summarized the recommendations of the March 2025 CSE meeting (see Dist. Ex. 4).
On March 20, 2025, the district confirmed receipt of the parent's notification of her intent to place the student at a nonpublic school and request equitable services for the student for the 2025-26 school year (Parent Ex. C).
The hearing record included an agreement between the parent and Mount Resources for the student to be provided with six 60-minute sessions per week of group SETSS, two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of OT for the 2025-26 school year (see Parent Ex. E).[4], [5] According to the case coordinator of Mount Resources, the agency rate for SETSS was $205 per hour (Parent Exs. E at p. 2; H ¶ 6). The contract with Mount Resources set forth the rate of $205 per hour for SETSS and rates charged for related services, including speech-language therapy and OT both at a rate of $300 per hour (Parent Ex. E at p. 2). Although the contract with Mount Resources indicated that the agency would "make every effort to implement the recommended services," the affidavit of the Mount Resources case coordinator only indicated that the agency was providing the student with six 60-minute sessions per week of SETSS and there was no explanation as to whether or not the student was receiving speech-language therapy or OT during the 2025-26 school year (Parent Exs. E at p. 1; H ¶ 10).
In a letter dated November 17, 2025, the parent, through her attorney, informed the district that the parent consented to the implementation of the recommended services in the student's IESP, but that she "ha[d] no way of implementing" the recommended services and she "ha[d] no choice but to make efforts to implement the [March 2025] IESP" and seek reimbursement or direct payment from the district (Parent Ex. D at p. 2).[6] The letter also indicated that the parent
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 (Parent Ex. A 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 for the district to fund services chosen by the parent, 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 allegations, asserted affirmative defenses, and attached a prior written notice that contained information 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, 2026 (Tr. pp. 1-16).[7] In a decision dated January 15, 2026, the IHO found that the district failed to offer the student a FAPE in that there was no evidence as to how the student's recommended program would have been implemented; the IHO then went on to find that the unilaterally obtained services were appropriate and that equitable considerations favored the parent (IHO Decision at pp. 7-9).[8]
In connection with the parent's unilaterally obtained services, the IHO found "no actual dispute" with respect to the appropriateness of the equitable services because the parent's unilaterally obtained services 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 the services enabled the student to obtain educational benefits (id. at pp. 7-8).
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, 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 FAPE (id.). The IHO was not persuaded by the district's evidence as to the unreasonableness of the provider's rate and found the evidence of the rate in the contract with Mount Resources to be reasonable (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 implements 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 2025-25 school year and, until such time as it does implement services, fund six periods per week of bilingual SETSS to be provided by a New York State certified special education teacher at the rate of $205 per hour, for the 10-month 2025-26 school year upon submission of invoices for services and a valid contract (IHO Decision at pp. 9-10).
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 SETSS obtained by the parent were appropriate, and erred in failing to consider the district's evidence in evaluating the reasonableness of the SETSS rate. Further, the district argues that the IHO erred in finding that the district waived its right to cross-examine the parent's witness.
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 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 IHO rendered the decision on January 15, 2026; thus, the district had until February 24, 2026 to personally serve the parent with a verified request for review (see 8 NYCRR 279.4, 279.11[b]; IHO Decision at pp. 1, 10).
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).[9] 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 last known address (id. at pp. 3-5).[10] There was no response from the parent included with the emails (id.). Notably absent from the district's letter was a request to extend the time for service of the papers on the parent (id. at p. 1).
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 7:32 PM; February 19, 2026 at 12:59 PM; and February 21, 2026 at 10:19 AM (id.). On each occasion, the process server indicated that no one answered the door at the residence (id.).
In response to the district's February 24, 2026 letter, on February 26, 2026, this office granted permission for alternate service on the parent, including specific directives regarding the methods of service (Feb. 26, 2026 OSR Correspondence at p. 1).[11]
Thereafter, in a declaration of service dated March 5, 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, and by first class mail on parent's counsel from the impartial hearing (March 5, 2026 Dec. of Service).[12], [13]
According to an affirmation of personal service dated March 4, 2026, on March 3, 2026, the parent was personally served with 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 (March 4, 2026 Affir. of Personal Service). The notice of request for review and request for review, together with the declaration of service and affirmation of personal service were filed with this office on March 6, 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 rather than through the alternate means provided for in the OSR letter, on March 3, 2026 (March 4, 2026 Affir. of Personal Service). As the last day for timely service was February 24, 2026, the district's March 3, 2026 service on the parent was late. While the district requested permission to effectuate service by an alternate method, it did not assert any explanation for the untimely service in the request for review and, accordingly, failed to offer good cause for its untimely service in the request for review as required by 8 NYCRR 279.13. Furthermore, although the district requested permission to effectuate service by alternative means, the district did not request permission, either at that time or in its request for review, for an extension of the time for service of the request for review.
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 presented, as a matter within my discretion I decline to accept a late request for review and the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] The hearing record contains duplicate copies of the March 4, 2025 IESP (compare Parent Ex. B, with Dist. Ex. 3). For ease of reference, this decision will cite to the parent's exhibit.
[2] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[3] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[4] Mount Resources has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[5] The contract with Mount Resources is dated November 14, 2025, and there is no evidence in the hearing record that services began prior to that date (see Parent Ex. E). Neither the progress report, nor the testimony of the Mount Resources case coordinator, identified a specific starting date for services (Parent Exs. G; H).
[6] The letter was not written on the letterhead of the law firm and was written in the first person as if drafted by the parent; however, the letter was not signed by the parent but instead included a conformed signature of the parent's attorney and was sent from what appears to be an email address of a an employee with the parent's law firm (id. at pp. 1-2).
[7] The hearing record includes an undated omnibus docket order issued by a different IHO, which indicates an intention to "set firm expectations of the [p]arties [in order to] to resolve the matter fairly and efficiently" (see IHO Ex. I).
[8] On December 19, 2025, the district made a motion to dismiss for a lack of subject matter jurisdiction, which the IHO denied during the January 14, 2026 impartial hearing (IHO Decision at p. 2; Tr. pp. 8-9; see IHO Ex. IV).
[9] While the district indicated that it had attempted to serve a notice of intention to seek review, the district did not end up filing a notice of intention to seek review and only filed a notice of request for review and a request for review. The notice of intention to seek review and notice of request for review are different documents. According to State regulation, the petitioner must personally serve the opposing party with a notice of intention to seek review and case information statement no later than 25 days after the date of the IHO's decision and with the request for review no later than 40 days after the date of the IHO's decision (8 NYCRR 279.2[a], [b], [e]). Thereafter, "the notice of intention to seek review, notice of request for review, request for review, and proof of service [must be filed] with the Office of State Review . . . within two days after service of the request for review is complete" (8 NYCRR 279.4[e]). In this matter, it appears that the district did not serve or file a notice of intention to seek review or case information statement as required.
[10] Prior to these emails, on January 30, 2026, the district sent an email to counsel who represented the parent at the due process hearing, requesting whether counsel represented 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 (Feb. 24, 2026 Dist. Correspondence at p. 6).
[11] 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 address in an envelope with the language "personal and confidential" without any indication on the envelope that the contents was from an attorney; and sending a copy of the February 26, 2026 letter, notice of intention to seek review, request for review, and any supporting papers to the parent's last known address by "certified mail, return receipt requested" (Feb. 26, 2026 OSR Correspondence at p. 1). Further, the district was directed to file an affidavit of service demonstrating completion of the alternative service (id.). Lastly, the district was directed that if the parent was represented by counsel at the impartial hearing, the district was required to provide a courtesy copy of the February 26, 2026 letter, the notice of intention to seek review, the request for review, and any other supporting papers to the counsel who represented the parent at the impartial hearing, via first-class mail (id.).
[12] The declaration of service stated that the service was made on March 2, 2025 but it appears this was a typographical error, and the date should have been March 2, 2026 (March 5, 2026 Dec. of Service).
[13] The district in its affirmation of personal service and declaration of service by mail, stated that a notice of intention to seek review was served on the parent but, as noted above, the district did not file a notice of intention to seek review in this matter (see (March 5, 2026 Dec. of Service; March 4, 2026 Affir. of Personal Service).