STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-408
Application of a STUDENT WITH A DISABILITY, by her parent, 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: Liberty & Freedom Legal Group, Ltd., attorneys for petitioner, by Erin G. McGuinness, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Gail Eckstein, 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 parent) appeals from a decision of an impartial hearing officer (IHO) which denied his request that respondent (the district) fund the costs of his daughter's tuition at the International Academy for the Brain (iBrain) for the 2025-26 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
The student was the subject of prior State-level appeals involving the 2021-22, 2022-23, 2023-24, and 2024-25 school years (Application of a Student with a Disability, Appeal No. 24-439; Application of a Student with a Disability, Appeal No. 23-312; Application of a Student with a Disability, Appeal No. 22-150). The parties' familiarity with both the prior matters and this matter is presumed and, therefore, the student's educational history, the procedural history of this case, and the IHO's decision will not be recited in detail. At all relevant times, the student was eligible for special education as a student with a traumatic brain injury (see Dist. Exs. 1 at p. 1; 3 at p. 1).[1]
On February 24, 2025, a CSE convened and developed an IEP to be implemented on March 3, 2025 (Dist. Ex. 1 at p. 1).[2] The February 2025 CSE recommended a 12-month program consisting of placement in an 8:1+1 special class at a specialized district school along with related services, assistive technology, and special transportation (id. at pp. 62-68).[3], [4], [5] Additionally, the CSE recommended full-time, 1:1 paraprofessional services to support the student's needs relating to health, safety, ambulation, and feeding (id. at p. 63). For related services, the CSE recommended five 60-minute sessions per week of individual occupational therapy (OT), five 60-minute sessions per week of individual physical therapy (PT), five 60-minute sessions per week of individual speech-language therapy, three 60-minute sessions per week of individual vision education services, two 30-minute sessions per week of individual orientation and mobility services, one 60-minute session per month of parent counseling and training, and school nurse services as needed (id. at pp. 62-63).
On May 29, 2025, the district issued a prior written notice and a school location letter (Dist. Exs. 3 at p. 1; 4 at p. 1). The prior written notice memorialized the recommendations of the February 2025 CSE, as well as the other placement options considered (Dist. Ex. 3). The school location letter identified the public-school site to which the district assigned the student to receive the recommended special education programming (Dist. Ex. 4 at p. 1).
On June 3, 2025, the parent signed a transportation services contract, effective from July 9, 2025 through June 26, 2026, with Sisters Travel and Transportation Services (Sisters) (Parent Ex. A at pp. 37, 43-44). Under the contract's terms, Sisters would transport the student to and from iBrain for a for a fee of $235,662.00, to be paid by the parent in three installments (id. at pp. 37-38).[6] The transportation services contract further provided that the parent's obligation to pay Sisters would be suspended while the parent sought funding from the district (id. at p. 38).
In a letter to the district dated June 12, 2025, the parent, through his attorney, expressed concerns with the recommended programing and placement (Parent Ex. A at pp. 13-14). The June 2025 letter alleged a "lack of proper assessments conducted by the [district] prior to the development of the" February 2025 IEP, and it included a request for an independent educational evaluation (IEE), "to be conducted at public expense" (id. at p. 13). The letter also included a request for the CSE to reconvene, after the completion of the IEE, "to develop an appropriate IEP" (id. at p. 14). Finally, the letter expressed the parent's intention to enroll the student at iBrain for the 2025-26 school year if the district failed to recommend appropriate special education programming (id. at pp. 13-14).
On June 16, 2025, the parent signed an enrollment contract with iBrain, under which the parent agreed to pay a total of $379,665.50, in three installments, for the 2025-26 school year (Parent Ex. A at pp. 30-31).[7], [8] Like the parent's contract with Sisters, the contract with iBrain suspended the parent's payment obligation while he sought funding from the district (id. at p. 31).
During the 2025-2026 school year, the student attended iBrain, where, in addition to her academic programming, she received OT, PT, speech-language therapy, vision education services, hearing education services, and music therapy, as well as "access to AT devices and services" and "the services of a 1:1 health paraprofessional" (see Parent Exs. J ¶ 13; G; H).
A. Due Process Complaint Notice and Subsequent Events
In a due process complaint notice dated July 2, 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 at pp. 1, 7). The parent alleged numerous procedural flaws in the development of the February 2025 IEP, including the district's failure to conduct timely, appropriate evaluations, as well as substantive deficiencies in the IEP itself (id. at pp. 7-8). Among the asserted substantive deficiencies, the parent alleged that the IEP did not include recommendations for extended school day services, hearing education services, music therapy, appropriate assistive technology devices, assistive technology training, or appropriate supports for school personnel (id. at pp. 8-10). In addition, the parent alleged that the assigned public-school site was unsuitable for the student and could not implement the IEP as written (id. at pp. 8-9). As relief, the parent requested an order directing the district to fund the full cost of the student's tuition for the 2025-26 school year by direct payment to iBrain; fund the cost of the student's transportation services by direct payment to Sisters; reevaluate the student and provide assistive technology devices and services; fund an IEE, including independent psychological, neuropsychological, and educational needs assessments; fund the additional, "supportive devices that are detailed in the iBrain IEP"; and convene a CSE meeting to address the student's needs (id. at pp. 11-12).
An IHO with the Office of Administrative Trials and Hearings (OATH) was assigned to preside over the matter (Tr. pp. 1, 3). A prehearing conference took place on August 5, 2025 (Tr. p. 3), and on August 11, 2025, the IHO issued an interim decision on pendency, determining that pendency lay in a prior decision of an IHO (Interim Decision on Pendency at p. 1). The August 2025 pendency order required the district to fund the student's tuition at iBrain, including the supplemental tuition fee, as well as the student's transportation services, on a 12-month basis (id.).
B. Impartial Hearing Officer Decision
An impartial hearing convened on September 3, 2025 and concluded on October 6, 2025, after three days of proceedings (Tr. pp. 3-20, 55, 58-60, 110-11, 113-15, 214-15). During the hearing, the district offered various exhibits, each of which the IHO admitted into evidence, including testimony via affidavit from a school psychologist who participated in the February 2025 CSE meeting (Tr. pp. 27-28, 64; Dist. Exs. 1-15; 16 ¶¶ 2, 7; 17).[9] The parent also offered various exhibits, most of which the IHO admitted into evidence, including testimony via affidavit from the deputy director of special education at iBrain (Tr. pp. 32-25; Parent Exs. A-I; J ¶ 1).[10] The district school psychologist and the deputy director of special education at iBrain both appeared for cross-examination during the hearing (Tr. pp. 61-65, 149-51).
In a decision dated October 31, 2025, the IHO found that the district had "sufficient evaluative material to understand" and address the student's needs, "provided a cogent and responsive explanation of its decision-making process," and established that the February 2025 "IEP was reasonably calculated to confer educational progress" (IHO Decision at p. 10). Additionally, the IHO found the parent's claims that the assigned public-school site was inaccessible and could not have implemented the student's IEP to be speculative and/or contrary to the evidence in the hearing record (id. at pp. 7-9). Thus, the IHO concluded that the district offered the student a FAPE for the 2025-26 school year, and the IHO denied the requested relief in full (id. at p. 10).
Although the IHO rejected the parent's claims for relief, the IHO made an alternative finding that both the student's educational program at iBrain and the student's transportation services from Sisters "were appropriate to meet [the] [s]tudent's needs" (IHO Decision at p. 10). The IHO reasoned that "[t]he record contains extensive evidence of [iBrain]'s understanding of [the] [s]tudent's needs[;]" iBrain created an individualized program that met those needs; and, while "the record is less extensive as to the appropriateness of" the student's transportation services, the parent's contract with Sisters "outlines appropriate transportation conditions for [the] [s]tudent" (id.).
Lastly, the IHO found "no equitable issues that would bar or reduce" the requested funding, as the parent cooperated with the district's efforts to create the student's program, made the student available for evaluations, participated in the creation of the February 2025 IEP, and "provid[ed] the appropriate ten-day notice" (IHO Decision at p. 10). The IHO noted that, while the cost of the student's tuition and transportation was "high on its face," the district "provided no evidence as to what a reasonable cost would be to educate someone" who, like the student, "has an extensive array of needs" (id.).
IV. Appeal for State-Level Review
The parent appeals. The parties' familiarity with the issues raised in the parent's request for review and the district's answer is presumed and, therefore, the allegations and arguments will not be recited here in detail. Briefly, the parties dispute the following issues: whether the IHO erred in failing to address all of the allegations contained in the due process complaint notice; whether the IHO erred in determining that the district offered the student a FAPE for the 2025-26 school year; and whether the IHO erred in denying the parent's request for an IEE.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[11]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
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., 694 F.3d at 184-85).
VI. Discussion – Timeliness of Request for Review
As a threshold matter, I must determine whether the parent's appeal should be dismissed for failure to comply with the State regulations governing appeals to the Office of State Review.
The practice requirements of Part 279 of the State regulations require that an appeal from an IHO's decision to an SRO be initiated by timely personal service of a notice of intention to seek review, followed by a notice of request for review, verified request for review, and other supporting documents, if any, upon the respondent (see 8 NYCRR 279.2[a]; 279.4[a], [g]).[12] The notice of intention to seek review shall be personally served within 25 days after the date of the IHO's decision to be reviewed (8 NYCRR 279.2[a]-[b]), while the notice of request for review and verified request for review shall be personally served "within 40 days after the date of" that decision (8 NYCRR 279.4[a]). "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; and 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]).
Here, parent's counsel failed to initiate this appeal in accordance with the timelines prescribed in Part 279 of the State regulations. The IHO's decision is dated October 31, 2025 (IHO Decision at p. 5). Hence, the last day to effectuate service of a notice of intention to seek review was November 25, 2025, while the last day to effectuate service of a notice of request for review and verified request for review was December 10, 2025 (see 8 NYCRR 279.2[a]-[b]; 279.4[a]). Yet, according to the parent's affirmations of service, the notice of intention to seek review was served on the district on April 3, 2026, followed by a notice of request for review and verified request for review on April 8, 2026 (Parent Affirmations of Service by Email).[13]
Under the State regulations, an SRO has the authority to dismiss an untimely request for review sua sponte (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 the failure to effectuate timely service "for good cause shown" (8 NYCRR 279.13). The filing party shall set forth the reason(s) for such failure "in the request for review" (id.). Good cause for late service "require[s] an event over which 'the filing party had no control,' such as postal service error" (M.K. v. New York City Dep't of Educ., 2026 WL 866416, at *4 [S.D.N.Y. Mar. 30, 2026], quoting Polanco v. Porter, 2023 WL 2751340, at *5 [S.D.N.Y. Mar. 31, 2023]; see also Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *5 [N.D.N.Y. Dec. 19, 2006]).
In the request for review, parent's counsel asks that an SRO accept the untimely pleading, asserting that "there is good cause for the delay" in initiating this appeal (Req. for Rev. ¶¶ 6, 9). Counsel asserts that the IHO's decision was transmitted by email to an individual attorney at counsel's firm on October 31, 2025, but "[d]ue to an unforeseen technical issue, that email was automatically routed to the attorney's junk email folder and, consequently, went unseen[,] despite regular monitoring of case-related correspondence" (id. ¶ 7).[14] Counsel further asserts that "[t]he firm first learned that the IHO Decision had been issued on April 3, 2026" and, upon discovery, "counsel acted promptly to" review the decision and prepare the request for review (id.). According to parent's counsel, this appeal was initiated "at the earliest possible date after becoming aware of the IHO's" decision, and the "inadvertent failure to receive the [decision] due to an email filtering error constitutes an excusable and unintentional mishap" (id. ¶ 9).
In an answer to the request for review, the district asks that the untimely pleading be dismissed, arguing that parent's counsel has not asserted good cause for the delay in accomplishing service. According to the district, the delay resulted from circumstances "completely within the control of [p]arent's counsel," as the IHO's decision "was properly sent to an attorney representing the [p]arent" (Answer ¶ 7). The district also alleges that "the email containing the final decision appears to be the only email communication from the entire case that was routed to a junk email folder" (id.). In support of its position, the district submits proposed SRO Exhibit 1, an e-mail transmitting the request for review to the district on April 8, 2026.
Initially, I decline to accept the district's additional, documentary evidence for admission and consideration on appeal. Proposed SRO Exhibit 1 provides the same information conveyed in an above-described affirmation of service, and thus, I find it is unnecessary to render a decision in this matter (see 8 NYCRR 279.10[b] [stating that an SRO "may seek additional . . . evidence if he or she determines that such additional evidence is necessary"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).
I now turn to the parent's request that the undersigned accept the untimely request for review.
Although parent's counsel has explained the months long delay in initiating this appeal, her explanation is unavailing. Assuming that the IHO's decision was, indeed, routed into a "junk" folder, such occurrence is not an event beyond counsel's control and does not, by itself, constitute good cause to excuse untimely service (see M.K., 2026 WL 866416, at *4 [stating that "delays resulting from errors within counsel's control, including clerical mistakes or technical difficulties, generally do not satisfy the good cause standard"]; Application of a Student with a Disability, Appeal No. 21-087 [opining that "the mere fact that e-mail communications were allegedly routed to a spam folder may not be a sufficient basis[,] by itself[,] to assert lack of notice, particularly whe[re] . . . the e-mail address was affirmatively provided . . . for the purpose of facilitating communications regarding the due process proceeding"]; Colon-Vazquez v. Dep't of Educ. of Puerto Rico, 46 F. Supp. 3d 132, 139-141 (D.P.R. 2014 [noting the difficulties with e-mail delivery of documents to the parent and declining to excuse the school district of its responsibilities]; Wong v. Bd. of Educ., 478 F. Supp. 3d 229, 259 [rejecting the parent's claim and finding that the school district's inadvertent blocking of the parents' e-mail as spam was insufficient basis to find that communication with the district had been impeded] [D. Conn. 2020]; Pettigrew v. Middletown Area Sch. Dist., 2006 WL 4032181, at *4 [M.D. Pa. Sept. 26, 2006] [describing a dispute over the date of receipt of an e-mailed document and the legal consequences flowing from receipt]).[15]
In Application of a Student with a Disability, Appeal No. 21-087, the undersigned SRO opined that participants in email communications have a responsibility, "incumbent with the decision to rely on e-mail," "to actively monitor the continuing effectiveness of [such] communications," "attempt to correct difficulties with reasonable diligence if their respective expectations have not been met," and "periodically check the spam folder at the risk of the consequences for the failure to do so." In this case, representatives of both parties were exchanging emails with the IHO leading up to the impartial hearing, and the IHO's decision was later emailed, on the day it was issued, to an employee of the firm that represents the parent (see IHO's Decision at p. 11; IHO Ex. II; Req. for Rev. ¶ 7; Answer ¶¶ 6-7). Parent's counsel characterizes the cause of the delay in effectuating service as "an unforeseen technical issue," also arguing that it was not unreasonable to expect the IHO's decision to be severely delayed (Reply ¶ 8); however, "technological glitches are entirely foreseeable" (M.K., 2026 WL 866416 at *3-*4 [internal quotations omitted]), and the parent's representatives could have inquired with the IHO when they did not promptly receive his decision in "their primary inbox" (Reply ¶¶ 6, 8).[16] Had the parent's representatives inquired with the IHO and/or checked their "junk" folders sooner, this appeal could have been initiated in a timely manner (see IHO Ex. II).
Parent's counsel also asserts that, while the district will suffer no prejudice if the SRO accepts the late request for review, the parent will be prejudiced if the merits of his appeal are not reviewed. According to parent's counsel, the district has received favoritism in obtaining extensions from SROs, and it "would be severely prejudicial and unjust" to not also accept the parent's late request for review (Reply ¶ 8); however, parent is comparing extensions for time to answer or reply granted after the filing of a request for review with the late filing of a request for review, which involve different considerations (see 8 NYCRR 279.10[e], 279.13). Additionally, the regulations require that the filing party provide a "good cause" reason for the delay in effectuating service of a late request for review (8 NYCRR 279.13). Occurrences in prior cases do not explain why the request for review was not timely served in this case. Moreover, the lack of prejudice to the district does not, by itself, establish good cause, nor does the parent's perception of unfairness, alone, establish good cause (see M.K., 2026 WL 866416, at *4 & n.2 [noting that courts in the Second Circuit "narrowly interpret[] the good cause exception" and that a lack of prejudice does not suffice to show good cause]; M.G. v. Rye City Sch. Dist., 2025 WL 343617, at *4 [S.D.N.Y. Jan. 30, 2025], aff'd, 2026 WL 520677 [2d Cir. Feb. 25, 2026]); B.C. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 367 [S.D.N.Y. 2013] [indicating that, while an SRO might in his or her discretion "consider whether a party has suffered prejudice, the regulations require a showing of good cause to excuse untimeliness"]; Benites v. New York Dep't of Corr. & Cmty. Supervision, 2023 WL 1966181, at *3 [S.D.N.Y. Feb. 13, 2023] [stating that "a circumstance beyond counsel's control . . . is the only basis for a showing of good cause"]).
Based on the foregoing, there is insufficient basis on which to excuse the parent's failure to timely appeal the IHO's decision, and in an exercise of my discretion, the appeal is dismissed (see 8 NYCRR 279.13; M.K., 2026 WL 866416, at *3-*4; 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., 971 F. Supp. 2d at 365-67; T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 440-41 [W.D.N.Y 2012]; 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 parent failed to properly initiate this appeal by effectuating timely service upon the district, and there being insufficient cause shown, in an exercise of my discretion, I decline to accept the untimely request for review, and the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Dated: Albany, New York
June 26, 2026
Justyn P. Bates
STATE REVIEW OFFICER
Footnotes
[1] The student's eligibility for special education as a student with a traumatic brain injury is not in dispute (see 34 CFR 300.8[c][12]; 8 NYCRR 200.1[zz][12]).
[2] The district's documentary evidence included pendency exhibits identified as district exhibits 1-5. The district also marked their documentary evidence for the impartial hearing on the merits as district exhibits 1-17. To the extent it is necessary to cite to the district's pendency exhibits, they will be referenced as District Pendency Exhibits 1-5. The district's exhibits related to the impartial hearing on the merits will be referenced as District Exhibits 1-17 (Dist. Pendency Exs. 1-5; Dist. Exs. 1-17).
[3] The February 2025 CSE recommended that the student participate in adapted physical education three time per week (Dist. Ex. 1 at p. 62).
[4] The assistive technology recommendations included daily use of a braille embosser, one 60-minute session per week of assistive technology services, and one 30-minute orientation and mobility consultation per week (Dist. Ex. 1 at p. 63).
[5] Special transportation recommendations included a lift bus to accommodate the student's wheelchair, climate control, limited travel time, and supervision provided by a 1:1 paraprofessional (Dist. Ex. 1 at pp. 67-68).
[6] The student began attending iBrain, a private, specialized school for students with "acquired brain injuries or brain-based disorders," in April 2022 (Parent Exs. A at pp. 30, 35-36; J ¶¶ 5, 13).
[7] The total cost of the student's program at iBrain included a base tuition fee of $230,040.00 and a supplemental tuition fee of $149,625.50 (Parent Ex. A at pp. 30-31). According to the contract, the base tuition fee of $230,040.00 covered the cost of an individual paraprofessional, school nurse services, and the student's academic programming (id. at p. 30). The supplemental tuition fee of $149,625.50 covered the cost of related services, including PT, OT, speech-language therapy, parent counseling and training, vision education services, hearing education services, assistive technology services, and music therapy (id. at pp. 30-31).
[8] According to the enrollment contract, iBrain's school year began on July 9, 2025 and ended on June 26, 2026 (Parent Ex. A at p. 30).
[9] The school psychologist's affidavit, which is unexecuted, was admitted only after the affiant affirmed the affidavit's content on the record (Tr. pp. 27, 62-64; Dist. Ex. 16 at p. 6).
[10] Parent Exhibits A, B, and D through J were admitted into evidence (Tr. pp. 33-35). Proposed Parent Exhibits C and K were withdrawn (Tr. pp. 32-33).
[11] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[12] The practice regulations envision an efficient process by which a notice of intention to seek review is served upon the respondent approximately 10 days before a request for review is served (but not later than 25 days after the date of the IHO decision). Among other things, the "service of a notice of intention to seek review upon a school district serves the purpose of facilitating the timely filing of the hearing record by the district with the Office of State Review" (see Application of a Student with a Disability, Appeal No. 24-083; Application of a Student with a Disability, Appeal No. 21-054; Application of a Student with a Disability, Appeal No. 16-040; Application of a Student Suspected of Having a Disability, Appeal No. 12-014). The district must file the completed and certified record with the Office of State Review within 10 days after service of the notice of intention to seek review (see 8 NYCRR 279.9[b]).
[13] Although the district was not served "personally," the affirmations of service indicate that service was accomplished via "the email addresses consented to and designated" by district's counsel for the service of pleadings, and the district has not raised an objection to the manner of service (8 NYCRR 279.2[a]; 279.4[a]; Parent Affirmations of Service by Email).
[14] The parent did not specify the email address to which the IHO decision was sent, nor did the parent explain how the parent learned on April 3, 2026 that the IHO decision had been issued months earlier.
[15] Parent's counsel has not submitted documentary or testimonial evidence to support the allegation that the IHO's decision was routed into the junk e-mail folder of another attorney at her firm. The veracity of that assertion has been assumed for purposes of this decision.
[16] Parent's counsel alleges "a pattern of excessive extensions" benefiting the district and delayed issuance of IHO decisions (Reply ¶ 8).