STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-404
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.
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 provide an appropriate educational program to respondent's (the parent's) son and ordered it to fund the student's private services delivered by Future Minds Inc. (Future Minds) 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 17, 2024 and found the student eligible for special education services as a student with a learning disability, and developed an IESP for the student with a projected implementation date of March 29, 2024 (Parent Ex. B at p. 1).[1] The March 2024 CSE recommended that the student receive five sessions per week of direct, group special education teacher support services (SETSS), one 30-minute session per week of individual counseling, two 30-minute session per week of individual occupational therapy (OT), and two 30-minute sessions per week of individual speech-language therapy (id. at pp. 7-8).[2]
On May 15, 2025, the district "confirm[ed] acceptance" of the parent's request for equitable services for the 2025-26 school year (Parent Ex. C).On September 5, 2025, the parent executed a "Special Education Services Agreement" with Future Minds for the 2025-26 school year for Future Minds to provide up to five 60-minute sessions per week of SETSS to the student "in accordance with the student's IESP (Parent Ex. H).
In a letter dated October 6, 2025, the district advised the parent that the student "[would] continue to receive special education services during the [2025-26] school year" pursuant to the current IESP (Dist. Ex. 12). The district advised the parent that a SETSS provider had been assigned and provided the contact info for the district's assigned provider (id.). In a letter dated October 14, 2025, the district assigned an OT provider to the student (Dist. Ex. 13).[3]
A. Due Process Complaint Notice
In a due process complaint notice dated December 6, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 school year by failing to offer a provider for SETSS in accordance with the student's IESP (Parent Ex. A at pp. 1-2). The parent alleged that the district failed to implement the recommended SETSS and related services for the 2025-26 school year and the parent had "no success securing a SETSS and related services provider at [the district] rate" (id. at p. 2). The parent alleged that they obtained services for the student at an "enhanced" rate and requested direct funding/reimbursement for the services obtained at an enhanced rate, compensatory education for any services not provided, and an interim order on pendency (id. at pp. 2-3).
B. Impartial Hearing Officer Decision
An impartial hearing convened and concluded before an IHO with the Office of Administrative Trials and Hearings (OATH) on February 17, 2026 (Tr. pp. 1-33). In a decision dated February 26, 2026, the IHO found that that the district failed to implement the student's 2024 IESP and denied him a FAPE and equitable services for the 2025-26 school year (IHO Decision pp. 1, 4-5). The IHO was not persuaded by the district's argument that its October 2025 letter demonstrated implementation of the recommended program, as the letter was dated after the start of the school year, only recommended an agency and not a certified teacher, and did not identify "how a designated provider or the agency was selected or what factors were considered in assigning the provider" (id. at p. 4). The IHO found that the district's submitted evidence "fail[ed] to show it was prepared to offer services" or that the district was otherwise providing services to the student in accordance with his IESP (id.). Additionally, because the letter was sent after the start of the school year, the IHO found that it was "untimely and insufficient" as it did not give the parent the opportunity "to evaluate the appropriateness of the designated [district]-related services provider" (id.). The IHO determined that the district's failure to assign the provider prior to the start of the 2025-26 school year amounted to a denial of FAPE on an equitable basis (id. at p. 5).
On the issue of the appropriateness of the parent's unilaterally obtained services, the IHO found that the service provider held a master's in special education and created an "individualized treatment plan, set goals, and consulted with [the student's] school teachers" (IHO Decision p. 3). The IHO found that the provider identified the student's needs and the student made progress as a result of the SETSS sessions (id.). The IHO held that the district could not refute the evidence in the hearing record, as it did not present any evidence to dispute the provider's qualifications or that the providers were not meeting the student's needs (id. at p. 6). The IHO concluded that the provider rates were not unreasonable and ordered the district to fund five hours per week of SETSS from the start of the 2025-26 school year to February 12, 2026 and three hours per week of SETSS from February 12, 2026 through the end of the 2025-26 school year at the rate of $195 per hour (id. at pp. 7-8).
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 erred in finding that the district denied the student a FAPE for the 2025-26 school year, 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 provider's rate.
The parent has not appeared or interposed an answer in this matter.
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]).[4] "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.).[5] 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
A. Preliminary Matter—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 February 26, 2026; thus, the district had until Tuesday April 7, 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, 8). Alternatively, Part 279 of the regulations permit a district to complete service by substituted means by delivering a copy of the request for review to a person of suitable age and discretion and also mailing a copy of the request for review, by certified mail, to the parent's last known residence (8 NYCRR 279.4[c][1]). Pursuant to State regulation, when substituted services is made, the district must "complete service within the timeline" (8 NYCRR 279.4[c][3]). Additionally, State regulation provides that service is "complete upon delivery to the party being served"; however, "the alternate service . . . shall be complete upon performance of all the actions required," which includes mailing of the request for review to the parent's last known address (8 NYCRR 279.4[c][1]).
An affirmation of attempted service, dated April 7, 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 April 1, 2026 at 10:57 AM; and April 6, 2026 at 9:19 PM (Req. for Rev. p. 12). On each occasion, the process server indicated that no one answered the door at the residence (id.). On April 7, 2026 at 11:01 AM, the licensed process server stated that he served a "person of suitable age and discretion" and indicated this person was a family member who verified that the parent did reside at the location where he was being served (id.). The affirmation does not indicate if the request for review was subsequently mailed to the parent at the residence as required by 8 NYCRR 279.4[c](1), nor was any proof of mailing or subsequent affirmation filed with this office (see id.). While the affirmation of attempted service indicates that service was attempted, the affirmation does not indicate that the district ever completed service on the parent within the required timeframe.
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 2024 IESP (compare Parent Ex. B, with Dist. Ex. 9). The documents appear identical, therefore, for ease of reference, this decision will cite to the parent's exhibit.
[2] 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.
[3] The hearing record also included an undated letter, addressed to "Parent/Guardian" indicating that the district assigned a provider for speech-language therapy (Dist. Ex. 11).
[4] 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]).
[5] 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 at https://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.