STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-346
Application of a STUDENT WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Law Office of Fredericka P. Bashir PLLC, attorneys for petitioners, by Fredericka P. Bashir, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Emily A. McNamara, 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. Petitioners (the parents)[1] appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the costs of their daughter's tuition at the Fusion Academy (Fusion) for the 2024-25 school year. The appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to 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, 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, the student attended 11th grade in a public school for approximately the first half of the 2024-25 school year (see Parent Ex. C at p. 1).[2]
On November 27, 2024, the student's mother electronically signed an enrollment contract with Fusion for three sessions of a course entitled "Executive Functioning/Organizational Skills (Parent Ex. M at pp. 2-4, 8-12).[3] The student's mother also agreed to have the student participate in the "M[astery] L[earning] M[odel] for an additional cost per session as needed, and further agreed to "pay-as-you-go" tutoring and mentoring for the student (id. at p. 5).
On December 16, 2024, the student's mother electronically signed an enrollment contract supplement with Fusion for two sessions of prepaid academic tutoring and mentoring (Parent Ex. M at pp. 21-23).
In an email to the district, dated December 19, 2024, the student's mother requested "an evaluation for an IEP" (Dist. Ex. 14 at p. 2). On January 6, 2025, the student's mother electronically signed an enrollment contract supplement with Fusion for three sessions of prepaid academic tutoring and mentoring (Parent Ex. M at pp. 18-20).
In a letter dated January 7, 2025, the parents, through an educational advocate, informed the district of "long-standing issues that significantly interfere[d] with [the student's] learning" (Parent Ex. C at pp. 1, 5). The parents stated that the student "ha[d] not been able to consistently attend and perform in school since the second half of [ninth] grade in 2023" (id. at p. 1). The parents also indicated that the student demonstrated difficulties with attention and concentration, completing schoolwork, and with school avoidance (id.). The parents noted that they had requested an initial evaluation on December 19, 2024, and that the student's existing "504 [p]lan" was no longer sufficient (id. at p. 2).[4] The parents further requested an independent educational evaluation (IEE) at public expense (id. at pp. 2-3). In conclusion, the parents stated that "since … there [wa]s no plan in place to provide meaningful support and facilitate [the student]'s access to education," the parents had "no alternative but to unilaterally place [the student] at Fusion … for the remainder" of the 2024-25 school year, and to seek tuition reimbursement at public expense (id. at p. 3).
By email dated, January 8, 2025, a district school social worker with the school based support team (SBST) wrote to the parents and described the documents that the parents were required to sign to proceed with an initial referral to the CSE for special education services (Parent Ex. C at pp. 8-9). The January 8, 2025 email also stated that a social history evaluation would be conducted by telephone on January 10, 2025 (id. at p. 8). In response, the parents confirmed the proposed date of the social history evaluation and provided the district school social worker with a copy of a privately obtained neuropsychological evaluation conducted in March and April 2024 and with letters written by the student's psychologist and psychiatrist (id. at pp. 7, 8; see Parent Exs. D; F-G).
On January 15, 2025, the student's mother electronically signed a registration form with Fusion (Parent Ex. M at p. 1). On January 23, 2025, the student's mother electronically signed an enrollment contract supplement with Fusion for 25 sessions each of computer science, economics, English 11, executive skills, foundations of personal fitness, physics, pre-calculus, and United States history (id. at pp. 13-16). On February 7, 2025, the student's mother electronically signed an enrollment contract supplement with Fusion for 25 sessions of Spanish 2 (id. at pp. 24-26).
A CSE convened on April 25, 2025 for an initial eligibility determination, found the student eligible for special education services as a student with an emotional disability, and developed an IEP for the student with a projected implementation date of May 5, 2025 (Dist. Ex. 7 at pp. 1, 23, 30).[5] The April 2025 CSE recommended a 12:1+1 special class in a State-approved nonpublic day school along with two 30-minute sessions per week of individual counseling services (id. at pp. 23). By prior written notice dated May 8, 2025, the district summarized the recommendations of the April 2025 CSE and requested the parents' consent for the initial provision of services (Dist. Ex. 2 at pp. 3-10).
A. Due Process Complaint Notice
In a due process complaint notice dated July 2, 2025, the parents alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2024-25 school year (Dist. Ex. 1 at pp. 2, 3). Specifically, the parents asserted that the district "failed in their Child Find duties," failed to evaluate the student, failed to convene a CSE meeting, failed to offer an appropriate program for the student, and failed to provide the parents with a procedural safeguards notice (id. at p. 2). As relief, the parents requested findings that the district failed to offer the student a FAPE on procedural and substantive grounds, that Fusion was an appropriate unilateral placement, and that equitable considerations did not warrant a reduction in the amount of tuition reimbursement the parents sought (id. at p. 3). The parents also requested reimbursement for an IEE (id. at p. 4).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 19, 2025 and concluded on November 20, 2025 after four days of proceedings (Tr. pp. 20-307).[6] In a decision dated February 11, 2026, the IHO found that the district conceded that it failed to offer the student a FAPE for the 2024-25 school year (IHO Decision at pp. 4, 13). Next, the IHO determined that Fusion was not an appropriate educational program for the student for the 2024-25 school year (id. at pp. 15-18). Having found that the parents did not meet their burden to demonstrate the appropriateness of Fusion, the IHO found that she need not address equitable considerations (id. at p. 18). Lastly, the IHO determined that the parents did not meet the criteria for public funding of an IEE and denied their requested IEE (id. at pp. 23-24).
IV. Appeal for State-Level Review
The parties' familiarity with the particular issues raised in the parents' request for review is presumed and the issues will not be recited here in detail. Generally, the parents assert that the IHO erred in finding that Fusion was not an appropriate unilateral placement and that the parents were not entitled to an award of prospective funding or reimbursement for the costs of the student's tuition at Fusion. The parents further argue that the IHO failed to rule on the issue of equitable considerations and that the IHO erred in finding that the parents were not entitled to reimbursement for the cost of the privately obtained neuropsychological evaluation.
In an answer and cross-appeal, the district argues that the parents' appeal should be dismissed because the parents' request for review was untimely and because the parents failed to set forth good cause as to why their appeal did not comply with State practice regulations for timely initiation of appeals.[7], [8] The district requests that the IHO's dismissal of the parents' claims and the IHO's denial of relief be affirmed. The district also argues that equitable considerations weigh in its favor.
In an answer to the district's cross-appeal, the parents acknowledge that the request for review "was inadvertently filed one day late due to a counting error in what constituted the fortieth day pursuant to Part 279.4 (a)" and explains that "the Part 279.3 Notice of request for review was inadvertently omitted from the Request for Review at the time it was filed on March 24, 2026" (Answer to Cr.-Appeal ¶ 1). The parents' attorney explains that "[b]y email dated March 26, 2026, … Parents' attorney submitted an amended Request for Review which included the Notice of Request for Review… [b]y email dated March 27, 2026" (id. ¶ 2). The parents' attorney argues that she was unaware that the request for review was untimely and thus had no reason to assert good cause in the request for review.
V. Discussion – Timeliness of Request for Review
As a threshold matter, it must be determined whether the parents' 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 parents 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 11, 2026; thus, the parents were required to personally serve a verified request for review on the district no later than March 23, 2026 (IHO Decision at p. 24; see 8 NYCRR 279.4[a], 279.11[b]). However, the parents' attorney's affirmation of service indicates she "personally served" a verified request for review and a memorandum of law on an unnamed party on March 24, 2026 at 10:35 p.m. and that on March 26, 2026 at 10:41 p.m., she "personally served" a notice of request for review and a verified request for review on an attorney for the district via e-mail (Aff. of Service ¶¶ 2-4), which renders the request for review untimely.
In the request for review, the parents' attorney did not acknowledge that the parents' appeal was untimely. Rather, in an answer to the district's cross-appeal, the parents' attorney stated that the request for review was inadvertently filed one day late due to a counting error in what constituted the "fortieth day" and that she was not aware of the error until the district served its answer and cross-appeal. The parents' attorney also stated that the notice of request for review was inadvertently omitted from the initial service of the request for review on March 24, 2026. In addition, the parents' attorney argued that although State regulation requires that the reasons for the failure to timely initiate an appeal be set forth in the request for review, "what is completely unclear is cases like the instant case where [the p]arents' attorney was unaware that the request for review was untimely due to a counting error," and that "since [the p]arent's attorney was unaware of the untimeliness of the appeal, the reasons for the failure could not have been contemplated to put into the request for review." As a result, the parents' attorney requests that "the failure to list reasons for untimeliness in the" request for review be excused.
Although the parents' attorney has offered an explanation, she has failed to assert good cause for the delay. Parents' attorney's explanation is unavailing as the explanation amounts to a clerical error in the scheduling of when the appeal was required to be filed. Law office failure does not constitute "an event that the filing party had no control over" (see Application of a Student with a Disability, Appeal No. 18-021 ["Generally, courts are unwilling to accept law office failure as a reasonable excuse absent a "'detailed and credible explanation of the default at issue'"], citing Scholem v. Acadia Realty Ltd. Partnership, 144 A.D.3d 1012, 1013 [2d Dep't 2016]; see also Application of a Student with a Disability, Appeal No. 24-425 [finding that parent's explanation relating to office internet difficulties did not constitute sufficient good cause]). To the contrary, "counsel had control over its calendaring of the deadline" and, therefore, "any clerical error cannot constitute good cause" (Polanco v. Porter, 2023 WL 2751340, at *5 [S.D.N.Y. Mar. 31, 2023]). Additionally, ignorance of the regulatory requirements would not be the sort of thing that would contribute to a finding of good cause (see B.D.S. v. Southold Union Free Sch. Dist., 2011 WL 13305167, at *17 [E.D.N.Y. Apr. 26, 2011] [noting that "[i]nadvertence, mistake or neglect does not constitute good cause"]). Based on the foregoing, there is no basis on which to excuse the parents' failure to timely appeal the IHO's decision (see 8 NYCRR 279.13).
Accordingly, because the parents failed to properly initiate this appeal by effectuating timely service upon the district and a good cause was not asserted for the untimeliness in the request for review, in an exercise of my discretion, the appeal is dismissed (8 NYCRR 279.13; see M.K. v. New York City Dep't of Educ., 2026 WL 866416, at *3-*4 [S.D.N.Y. Mar. 30, 2026]; Vasquez v. Aviles Ramos, et al, 2026 WL 203270, at *6 [S.D.N.Y. Jan. 26, 2026]; 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 served one day late]; 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.,2006 WL 8461781, at *14 [S.D.N.Y. Jan. 25, 2006], at *39-*41 [S.D.N.Y. Jan. 25, 2006] [upholding dismissal of a petition served one day late], adopted 05-CV-0006 [S.D.N.Y. Feb. 28, 2006]; 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 parents 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 student's mother filed the July 2, 2025 due process complaint notice individually and appeared individually during the impartial hearing (Tr. pp. 21, 113; Parent Ex. W; Dist. Ex. 1 at p. 1). In this appeal, the parents appear jointly (Req. for Rev. at p. 1). For the purpose of clarity, this decision will refer to parents for all stages of the proceeding, including referencing the petitioners as the parents on appeal.
[2] A clinical psychologist conducted a neuropsychological evaluation of the student "in or about March/April 2024 and January/February 2025" Parent Ex. X ¶¶ 1, 5).
[3] Fusion 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).
[4] A "504 [p]lan" refers to section 504 of the Rehabilitation Act of 1973 (see 29 U.S.C. § 794[a]).
[5] The district offered two versions of an April 25, 2025 IEP that were admitted into evidence (Dist. Exs. 4; 7). Review of the hearing record indicates that district exhibit 4 included a recommendation for "Special Class Approved Non-Public School-Day (Interim D75 Program 12:1+1)" and a May 28, 2025 prior written notice also included this recommendation (compare Dist. Ex. 4 at p. 23, with Dist. Ex. 8 at p. 1). District exhibit 7 included a recommendation for "Special Class All Classes" and a May 8, 2025 prior written notice also included this recommendation (compare Dist. Ex. 7 at p. 23, with Dist. Ex. 2 at p. 3). Following a discussion on the record, the parties and IHO agreed that the April 25, 2025 IEP marked as district exhibit 4 preceded the April 25, 2025 IEP marked as district exhibit 7, and that district exhibit 7 should have been internally marked as an IEP amendment and was the operative IEP for purposes of the impartial hearing (Tr. pp. 32-40). The parties also asserted that the documents differed in that one version recommended a 12:1+1 special class and the other recommended a nonpublic school (Tr. pp. 33-34, 37-39). However, review of the documents reflects that both documents identified as an April 25, 2025 IEP included recommendations for a 12:1+1 special class in a State-approved nonpublic school (Dist. Exs. 4 at pp. 23, 28, 29; 7 at pp. 23, 28, 29). For purposes of this decision, I will accept the parties' stipulation that district exhibit 7 was the IEP at issue in this matter, and as a result, the May 8, 2025 prior written notice must apply, as it includes the identical recommendation, and the May 28, 2025 prior written notice does not.
[6] A prehearing conference was held on August 5, 2025 (Tr. pp. 1-19; IHO Ex. I; IHO Decision at p. 3).
[7] Although interposed as a cross-appeal, the district's argument regarding the parents' untimely service of the request for review constitutes a defense, and not a cross-appeal because the district does not seek reversal or modification of the IHO's decision dated February 11, 2026.
[8] The district has included an additional document with its answer and cross-appeal. Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of the Dep't of Educ., Appeal No. 08-024; Application of a Student with a Disability, Appeal No. 08-003; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068). The district's proposed exhibit is a copy of the email the parents' attorney sent to the district on March 24, 2026, which is timestamped 10:35 p.m. and indicates that the district was electronically served with a verified request for review and memorandum of law. Here, the district's proposed exhibit is duplicative of the information set forth in the parents' attorney's affirmation of service, is not necessary to render a decision in this matter, and will not be considered further.