STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-325
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.
Shehebar Law P.C., attorneys for respondent, by Y. Allan Shehebar, 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 delivered by We Can Achieve, Inc. (WCA) 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 February 14, 2025, and having found the student eligible for services as a student with a speech or language impairment, developed an IESP with a projected implementation date of February 28, 2025 (see Parent Ex. B; Dist. Ex. 3).[1],[2] The CSE recommended that the student receive four periods of direct, group special education teacher support services (SETSS) per week and two 30-minute sessions of group speech-language therapy per week (Dist. Ex. 3 at p. 14).[3]
By prior written notice dated February 24, 2025, the district summarized the recommendations of the February 2025 CSE (see Dist. Ex. 4).
An email from the parent to the district dated March 11, 2025, included the subject "[student's name] June 1 letter," and, in an email from the district to the parent dated March 12, 2025, the district confirmed acceptance of her "[p]arental [n]otice of [i]ntent requesting special education services for the" 2025-26 school year (Parent Ex. C at p. 1-2).[4]
On July 28, 2025, the parent signed a contract with WCA for the delivery of four hours per week of SETSS during the 2025-26 school year, to begin on September 1, 2025 and end on June 30, 2026 (see Parent Ex. D).[5]
A. Due Process Complaint Notice
In a due process complaint notice dated October 28, 2025, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2025-26 school year (see Parent Ex. A). The parent asserted that the student should continue in the program recommended by the February 2025 CSE consisting of four periods of SETSS per week and two 30-minute periods of speech-language therapy per week (Parent Ex. A at p. 1). According to the parent, the district failed to provide this program as it failed to implement the services (id. at pp. 1-2). The parent contended that since the district did not implement the IESP, that she unilaterally obtained the services at an enhanced rate (id. at p. 2). The parent also alleged that the student was entitled to pendency services (id.).
For relief, the parent requested an order directing the district to fund or reimburse the privately obtained SETSS and related services at an enhanced rate (Parent Ex. A at p. 2). The parent also reserved the right to seek compensatory education for any recommended services the student did not receive (id.).
B. Impartial Hearing Officer Decision
An impartial hearing convened and concluded before an IHO with the Office of Administrative Trials and Hearings (OATH) on December 9, 2025 (see Tr. pp. 1-21).[6], [7] In a decision dated February 9, 2026, the IHO found that the district failed to implement the IESP and denied the student a FAPE for the 2025-26 school year and further determined that the parent submitted evidence to show that the unilaterally obtained services were appropriate (IHO Decision at p. 6). The IHO noted that it was undisputed that the student was entitled to services pursuant to the February 2025 IESP (id. at p. 4). The IHO declined to dismiss the case for lack of subject matter jurisdiction and noted that he did not sign the requested subpoenas (id. at pp. 4-5).[8] Turning to the issue of pendency, the IHO determined that the student was entitled to pendency as a matter of law and that the February 2025 IESP established the student's current educational placement for the purpose of pendency (id. at pp. 5-6).
The IHO held that the district did not allege or submit proof that services were implemented, only arguing that the student was not entitled to services (IHO Decision at p. 6). Therefore, the IHO determined that it was undisputed that the district failed to implement services (id.). The IHO found that the parent obtained a provider to implement SETSS at an enhanced rate and offered evidence to support that the services were appropriate (id.).[9] The IHO determined that the hearing record supported finding that the privately obtained services were appropriate (id.). Regarding the district's argument that the rate sought was excessive, the IHO noted that the district did not present any witnesses to support its evidence and gave no explanation as to how the evidence supported its position; therefore, the IHO found that the district failed to demonstrate the rate sought was unreasonable (id.).
The IHO ordered the district to fund SETSS delivered by WCA during the 2025-26 school year at a rate of $195 per hour upon presentation of an itemized bill, progress report, and session logs and also awarded a compensatory bank of 72, 30-minute sessions of speech-language therapy to be delivered by a provider of the parent's choosing (IHO Decision at pp. 6-8).
IV. Appeal for State-Level Review
The district appeals. The district argues that the IHO erred by failing to find it had furnished a provider for SETSS and speech-language therapy services to the student for the 2025-26 school year. The district further asserts that the IHO erred by finding the services obtained by the parent were appropriate. Moreover, the district contends that the IHO erred in awarding compensatory education, denying subpoenas, finding that equitable considerations favored the parent, and in awarding pendency as funding for privately obtained services.
In an answer, the parent argues that the IHO correctly found that the district failed to implement the recommended services, that the services obtained were appropriate, that equitable considerations favored the parent, and that the district was also responsible for funding the student's services under pendency. The parent requests the IHO decision be upheld.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[10] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[11] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. 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 February 9, 2026; thus, the district had until March 23, 2026, to personally serve the parent with a verified request for review (8 NYCRR 279.4[a], 279.11[b]).[12]
By letter to the Office of State Review (OSR) dated March 20, 2026, the district sought guidance as to how to effectuate alternate service on the parent of a verified request for review, asserting that it had unsuccessfully "made diligent attempts" to personally serve the parent (Mar. 20, 2026 Dist. Correspondence at p. 1).[13] Attached to the district's correspondence were copies of two emails from the district to the parent and the parent's attorney, dated February 18 and 26, 2026, wherein the district informed them that it was appealing this matter and was asking for consent to serve documents via email (id. at pp. 4-5). There was no response included with the emails (id.). Also attached to the district's request of alternate service was an affirmation of attempted service dated March 6, 2026, which reflected that the district attempted to personally serve the parent the notice of intention to seek review on March 3, 2026 (id. at p. 3).[14] Lastly, attached to the request for alternate service was an "[a]ffirmation of [a]ttempted [s]ervice" dated March 19, 2026, which reflected that the district attempted to personally serve the request for the review on the parent on March 16, 2026, March 18, 2026, and March 19, 2026 (id. at p. 2).
The Office of State Review granted permission for alternate service on the parent that included specific directives regarding how service may be completed (Mar. 23, 2026 OSR Correspondence at pp. 1-2). Specifically, the letter permitted the district to serve the parent by affixing the request for review and supporting papers to the door of the parent's last known residence and further instructed the district to send the parent a copy of the letter and the request for review to the parent's last known address by "Certified Mail, Return Receipt Requested" and that "upon the petitioner's filing of its request for review with the Office of State Review, petitioner shall provide proof of all attempts at service, failed and successful, including proof of certified mailings, along with the request for review" (id. at pp. 1-2 [emphasis removed]).
A verified request for review dated March 16, 2026 was received by OSR (see Req. for Rev.). Attached to the verified request for review was: a verification dated March 16, 2026; an "[a]ffirmation of [s]ervice 'AFFIX ONLY'" dated March 24, 2026 that indicated the request for review was affixed on the parent's door on March 23, 2026; an "[a]ffirmation of [s]ervice by [m]ail" dated March 24, 2026 asserting that, on March 23, 2026, the district "mailed a true copy," via first class mail, of the request for review; and a declaration of service stating that the request for review was mailed to the parent's attorney on March 24, 2026.
It is noted that the district failed to comply with the directions from the OSR letter dated March 23, 2026 (see Mar. 23, 2026 OSR Correspondence). The district failed to comply with the directives included in the letter as there is no evidence the district mailed the March 23, 2026 OSR letter and the request for review to the parent via certified mail with return receipt requested. The district only filed an affirmation of service by mail asserting that it "mailed a true copy" of the March 23, 2026 letter and the request for review by "First Class Mail" and that the "[s]aid envelope was deposited in the official depository under exclusive care and custody of the U.S. Postal Service" (Mar. 24, Aff. of Service by Mail). Thus, the district's service was not complete as there is no evidence submitted to support a finding that the district followed directives included in the March 23, 2026 letter.
Pursuant to State regulation, when a district is permitted to complete service "as directed by a State Review Officer," the district "must complete service within the [40 day] timeline" and service is only complete "upon performance of all the actions required" (8 NYCRR 279.4[c][2]- [3], [d]).
Based on the information above, the district failed to properly complete service on the parent on March 23, 2026. As that was the last day for timely service, the district's request for review was not served within the applicable timeline. While the district requested permission to effectuate service by an alternate method, the district did not explain why it did not complete service in accordance with the directives set forth in the March 23, 2026 letter. As the district did not acknowledge that service was not complete, it did not assert any explanation for the untimely service of the request for review and, accordingly, failed to offer good cause for why service was not completed timely as required by 8 NYCRR 279.13.
Based on the foregoing, the district failed to properly initiate this appeal by effectuating and completing service timely 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 found that the district failed to timely initiate the appeal pursuant to State regulations and there being no good cause asserted on appeal, 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 February 2025 IESP into evidence (see Parent Ex. B; Dist. Ex. 3). The parent's exhibit was not paginated and thus for purposes of this decision, the district exhibit will be cited when referring to the February 2025 IESP. The IHO is reminded that it is his responsibility to exclude evidence that he 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] A copy of the parent's letter was not in the hearing record, only this email chain discussing the transmittal of the letter.
[5] Although the contract noted that the student had an IESP, that WCA would implement the program "to whatever extent possible," and included rates for both SETSS and speech-language therapy, the contract did not specifically identify speech-language therapy as a service to be provided (Parent Ex. D).
[6] The district submitted a motion to dismiss this matter for a lack of subject matter jurisdiction on November 24, 2025 (IHO Ex. II). The district also submitted a request for the IHO to authorize subpoenas for the parent and a school witness to appear and produce documentation, which the parent objected to as being overly broad (IHO Ex. III).
[7] Subsequent to the filing of the due process complaint notice and prior to the impartial hearing, the district, in an undated letter, indicated that it had located a speech-language therapy provider for the student (see Dist. Ex. 6). The district presented the letter into evidence as being dated November 16, 2025; however, the letter itself was undated (Tr. pp. 3-4). The SESIS log supported that the letter was dated November 16, 2026 (Dist. Ex. 7 at p. 1).
[8] Regarding the subpoenas, the IHO held that within the context of these proceedings, it would have been better if the district had held a resolution meeting to allow the parties to discuss relevant issues in the proceedings (IHO Decision at p. 5). The IHO opined the resolution meeting would have likely answered the district's questions relating to the subpoenas and had the parent failed to cooperate with the meeting, the district could have sought dismissal (id.).
[9] It is noted that the IHO referenced the 2024-25 school year in this finding; however, this matter only concerned service for the 2025-26 school year (IHO Decision at p. 6; see also Parent Ex. A).
[10] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[11] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[12] The 40th day fell on Saturday, March 21, 2026, which allowed for the district to file the request for review on Monday, March 23, 2026 (see 8 NYCRR 279.11[b]).
[13] In the letter, the district noted that it was able to personally serve the parent with the notice of intention to seek review, but had been unable to personally serve the request for review (Mar. 20, 2026 Dist. Correspondence at p. 1).
[14] The district 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. As noted above, the notice of intention to seek review was successfully, personally served on the parent on March 3, 2026 pursuant to an affirmation of service dated March 6, 2026 (see Mar. 6, 2026 Aff. of Personal Serv.).