STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-412
Application of a STUDENT WITH A DISABILITY, by his 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: Liz Vladeck, General Counsel, attorneys for respondent, by Bulban Salim, 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 her request that respondent (the district) fund the costs of her son's private services delivered by Kids Further Inc. (Kids Further) for the 2022-23 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
The parties' familiarity with this matter is presumed, and given the disposition of this matter, it is not necessary to recite the facts and procedural history of this case in detail. A Committee on Preschool Special Education (CPSE) convened on August 29, 2017, found the student eligible for special education as a preschool student with a disability, and developed an individualized education program (IEP) with a projected implementation date of September 5, 2017 (Parent Ex. C at pp. 1, 2). The August 2017 CPSE recommended that the student receive related services of two 30-minute sessions per week of speech-language therapy in English and two 30-minute sessions per week of occupational therapy (OT) in English (id. at p. 14).
On or about May 27, 2022, the parent provided the district with notice of her intention to enroll the student in a nonpublic school at her own expense for the 2022-23 school year and requested the provision of special education services from the district (Parent Exs. F; L ¶ 5). On or about September 1, 2022, the parent contracted with Kids Further for the provision of speech-language therapy for the student for the 2022-23 school year at a rate of $175 per 30-minute period (Parent Ex. G; see Parent Exs. K ¶ 14; L ¶¶ 9-10).[1] Later, on or about December 15, 2022, the parent contracted with Kids Further for the provision of special education teacher support services (SETSS) for the 2022-23 school year at a rate of $218 per period (Parent Ex. H; see Parent Exs. K ¶ 12; L ¶¶ 9-10).
A CSE convened on December 5, 2022, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of December 19, 2022 (Parent Ex. D at p. 1).[2] The December 2022 CSE recommended that the student receive five periods per week of group SETSS in Yiddish, one 30-minute session per week of individual speech-language therapy in Yiddish, one 30-minute session per week of group speech-language therapy in Yiddish, and two 30-minute sessions per week of individual OT in English (id. at p. 11).
A. Due Process Complaint Notice
The parent filed a due process complaint notice dated July 15, 2024 and an amended due process complaint notice dated January 13, 2025 (Parent Exs. A; B). In the amended due process complaint notice, the parent, by her attorney, alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23 school year by failing to implement the services recommended in the student's August 2017 IEP and December 2022 IESP (Parent Ex. B at pp. 1-2). Specifically, the parent alleged that the district failed to assign any providers to implement the student's mandated services, which required the parent to seek out her own providers (id. at p. 2). The parent was unable to locate providers for the student at the district's standard rates but was able to find providers at enhanced rates (id.). Among other relief, the parent sought funding from the district for the unilaterally obtained services at an enhanced rate and a "bank of compensatory education services" for any mandated services not provided to the student for the 2022-23 school year (id.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 28, 2025, and concluded on March 25, 2025, after two days of proceedings (Tr. pp. 1-92). The district submitted no documentary evidence and called no witnesses, while the parent entered 13 exhibits and called two witnesses consisting of the director of Kids Further and the parent herself (IHO Decision at p. 3; see Tr. pp. 1-92; Parent Exs. A-M). The district submitted a written motion to dismiss for lack of subject matter jurisdiction and ripeness dated September 11, 2024 (Dist. Mot. to Dismiss). The parent opposed the district's motion to dismiss in a brief dated February 11, 2025 (Parent Opp'n to Mot. to Dismiss).
Sometime subsequent to the hearing dates, the matter was reassigned to a different IHO (IHO Decision at pp. 3-4). Due to the reassignment of the IHO, the decision from the impartial hearing was not issued until February 20, 2026 (id. at pp. 1, 3-4).
In a decision dated February 20, 2026, the reassigned IHO found that the district denied the student a FAPE for the 2022-23 school year because it failed to present a case (IHO Decision at p. 17; Tr. p. 13). However, the IHO also found that the unilaterally obtained services provided by Kids Further were inappropriate to address the student's unique needs (IHO Decision at pp. 17-18). Specifically, the IHO found that the lack of evidence concerning the student's general education curriculum, the student's poor performance in school, and the lack of related services, including speech-language therapy and OT, all militated against a finding of appropriateness (id.). Further, had the IHO found the unilaterally obtained services to be appropriate, she would have reduced the parent's award due to excessive rates for services and lack of evidence that the parent submitted a ten day notice (id. at p. 18). Additionally, the IHO denied the district's motion to dismiss for lack of subject matter jurisdiction (id. at p. 17).
IV. Appeal for State-Level Review
The parent appeals, appearing pro se and alleging that the IHO erred in several respects. First, the parent argues that the reassignment of the IHO without notice deprived her of due process rights and is, on its own, justification for remand. Next, the parent contends that the reassigned IHO was impermissibly biased against her and the student due to their religion, and that the IHO exhibited that bias by signing her name to an open letter in 2016. Further, the parent argues that the IHO's findings regarding credibility and record certification should be disregarded due to the fact that the IHO was not present for the impartial hearing. The parent contests the IHO's findings regarding the appropriateness of unilaterally obtained services, including the lack of evidence of the student's general education curriculum and conclusions to be drawn from the student's progress reports. Additionally, the parent contends that the district only contested the rates for services, so the IHO should not have addressed any issues other than rates. Finally, the parent argues that she was not required to submit a ten day notice, and that the IHO improperly inverted the burden of proof regarding compensatory education.
The parent also acknowledges that her request for review is potentially untimely. She claims that she was not made aware of the IHO's February 20, 2026 decision until March 3, 2026, and so her 40-day window should run from the date on which she was actually made aware of the decision. However, the parent argues that, even if the 40-day window is calculated from the date the decision was issued, good cause exists to excuse her late appeal. Specifically, the parent argues that her correspondence with the Office of State Review and religious observances between April 1, 2026, and April 8, 2026 all provide good cause for her late request for review.
Along with her request for review, the parent also submits several additional exhibits and requests that all of them be received in evidence on appeal.
By answer, the district argues that the parent's request for review should be dismissed as untimely. Further, the district argues that the parent has not demonstrated good cause justifying the late filing. The district goes on to object to the parent's additional exhibits, arguing that such exhibits are duplicative, irrelevant, and generally unnecessary for the resolution of the appeal. The district also objects to arguments raised in the parent's memorandum of law that were not included in the request for review, including arguments relating to the rate for services, the parent's financial obligation, the IHO's alleged predisposition, and evidentiary gaps. Additionally, the district contests the parent's allegations of IHO bias, arguing that there is no clear evidence of bias. Finally, the district argues that the parent is not entitled to compensatory education for OT because the parent never made an effort to secure OT, that the parent failed to prove the appropriateness of the unilaterally obtained services, and that equitable considerations favor the district.
By reply to the district's answer, the parent objects to the district use of the term "cross-appeal" in its answer, argues that her request for review was indeed timely, that the additional evidence is relevant and should be admitted, that her request for review sufficiently pled all relevant issues, that the district implicitly conceded several aspects of the matter, that the district's arguments regarding bias, credibility, rates, and ten day notice are all unpersuasive, and that the district should be estopped from making any arguments other than excessive rates for services.
V. Discussion
A. Additional Evidence
The parent has submitted several additional documents along with her request for review and requests that they be considered on appeal. Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an IHO'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 a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; 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]).
Here, the parent has submitted several additional exhibits that each fall into one of three separate categories: correspondence between the parent and the IHO, correspondence between the parent and the Office of State Review, and documents proffered to support the parent's bias argument against the IHO. Given the disposition of this appeal, the parent's exhibits relating to bias are not necessary to resolve this dispute and their admission is accordingly denied. The correspondence between the parent and the Office of State Review is already part of the hearing record; nevertheless, for ease of reference, the exhibit designations assigned by the parent will be cited (SRO Exs. C-F). With regard to correspondence between the parent and the IHO, these documents were not available at the time of the impartial hearing and are necessary to consider in ruling upon the parent's assertion of good cause with respect to the service deadline, so proposed exhibits A-D are hereby admitted and will be considered (SRO Exs. A-B).
B. Timeliness of Request for Review
I now turn to the timeliness of the request for review and find that the parent'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 parent 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 20, 2026; thus, the parent had until Wednesday, April 1, 2026, to serve the district with a request for review (see IHO Decision at pp. 1, 18; 8 NYCRR 279.4[a]). According to the parent's affidavit of service, the parent served the request for review on the district via email on April 7, 2026, 46 days after the date of the IHO's decision (see IHO Decision at pp. 1, 18; Parent Aff. of Service).
The parent's request for review asserts that "the [decision] dated February 20, 2026, was never served on [parent]," and that "OATH directed [the decision] exclusively to [former counsel], who had left the case in September 2025" (Req. for Rev. at p. 2). The additional evidence submitted by the parent demonstrates that, on February 20, 2026, OATH initially sent the IHO's decision to parent's former counsel, and on March 3, 2026, transmitted by email a copy of the decision to the parent (see SRO Exs. A; B). The parent admits in her request for review that the decision was transmitted to her on March 3, 2026 (Req. for Rev. at p. 2).
The time period for appealing an IHO decision begins to run based upon the date of the IHO's decision and State regulations regarding timeliness do not rely upon the date of a party's receipt of an IHO decision—or the date the IHO transmitted the decision by e-mail—for purposes of calculating the timelines for serving a request for review (see 8 NYCRR 279.4[a]; Mt. Vernon City Sch. Dist. v. R.N., 2019 WL 169380 [Sup. Ct. Westchester Cnty. Jan. 9, 2019] [upholding the dismissal of an SRO appeal as untimely, as calculation of the 40-day time period runs from the date of an IHO decision, not from date of receipt via email or regular mail], aff'd 188 A.D.3d 889 [2d Dep't 2020]; Application of a Student with a Disability, Appeal No. 19-043; Application of a Student with a Disability, Appeal No. 16-029; Application of a Student with a Disability, Appeal No. 10-081; Application of a Student with a Disability, Appeal No. 10-034; Application of a Student with a Disability, Appeal No. 08-043; Application of a Child with a Disability, Appeal No. 04-004). Therefore, the actual date that the IHO's decision is transmitted to the parties or the actual date either of the parties receives the IHO's decision is not relevant to the calculus in determining whether a request for review is timely.
Further, to the extent that the parent is asserting a delay in receipt of the IHO's decision contributed to any lateness in the service of the request for review, there may be circumstances that are outside a party's control identifying such instances as those in which the 40-day time period has either: 1) already expired; or 2) is much closer to expiring and there is no reasonable way in which a party could prepare and serve an appeal within the remaining time frame (see Application of a Student with a Disability, Appeal No. 20-030; Application of a Student with a Disability, Appeal No. 20-029). However, this case presents neither circumstance. The parent had ample time to timely serve the request for review after receipt of the IHO's decision on March 3, 2026.
In addition, while the parent argues that religious observances in April prevented her from timely filing her request for review, even if such observances constituted good cause, the dates cited did not commence until April 1, 2026, the date the request for review was due.[3] In an effort to explain why her request for review was not served prior to April 1, 2026, the parent refers to her correspondence with the Office of State Review in which she requested an extension of time to file the request for review and permission to exceed the page limitations (see SRO Exs. C; D). The parent alleges that her delay was due in part to her waiting on a response from the Office of State Review (Parent Reply at p. 2). However, the parent did not reach out to the Office of State Review until March 30, 2026, and did not file an official request for an extension until March 31, 2026 (see SRO Exs. C; D; E).[4] With her March 31, 2026 request, the parent submitted a copy of the 10-page request for review that she intended to serve (see Mar. 31, 2026 Parent Letter to OSR with Attachments).[5] The parent received responsive correspondence from the Office of State Review on April 1, 2026 (SRO Ex. F).[6] The parent offers no explanation why she did not go forward to serve the district with the request for review on April 1, 2026, after learning that an extension of time could not be granted (or, for that matter, given the concern for timeliness, while she waited for a response). While I am sympathetic to the challenges of litigation faced by pro se litigants, those challenges do not constitute good cause for serving a late request for review and the parent's election to not seek guidance until nearly the end of the appeal period was a decision she made at her own peril and does not serve to extend the time period.
Additionally, while the parent asserts that the district will suffer no prejudice if the SRO accepts this request for review as a late filing and the parent would be deprived of relief without review, the lack of prejudice to the district does not, by itself, provide good cause for why service of the April 2026 request for review was not made on time (see 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"]; see also M.K. v. New York City Dep't of Educ., 2026 WL 866416, at *4 n.2 [S.D.N.Y. Mar. 30, 2026][noting that a lack of prejudice was not the standard to assess dismissal for untimeliness]; 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][same]). Examination of the April 2026 request for review and accompanying documents shows that no good cause has been asserted or found to excuse the untimely service of the verified request for review on the school district (8 NYCRR 279.13).
Accordingly, because the parent failed to properly initiate this appeal by effectuating timely service of the request for review on the district and I do not find the parent's explanations to constitute good cause for the untimeliness, 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 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., 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. 18-046 [dismissing request for review for being served one day late]).
VI. Conclusion
Having found that the parent 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.
Dated: May 21, 2026
Sarah L. Harrington
STATE REVIEW OFFICER
Footnotes
[1] Kids Further has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[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] As noted above, State regulation explicitly provides that if the last day for service falls on a Saturday, Sunday, or legal holiday, service may be made on the following business day, but does not contain other exceptions (8 NYCRR 279.11[b]; see Gen. Const. Law §§ 24-25-a [addressing public holidays]; M.G. v. Rye City Sch. Dist., 2025 WL 343617, at *5 [S.D.N.Y. Jan. 30, 2025] [finding that a date that the school district's offices were closed was not a "legal holiday" under the regulations governing practice before the Office of State Review and citing the holidays outlined in the General Construction Law]; Bloom v. New York City Transit Auth., 19 A.D.2d 521, 521 [1st Dept. 1963] [noting that "a day of religious observance is not to be deemed a public holiday unless so proclaimed by the President or the Governor]). Accordingly, in accounting for holiday observances, State regulation only provides additional time for service where the legal holiday falls on the date of service and, for other holidays and/or holidays that fall during the remainder of the time period, parties are expected to manage their own schedules.
[4] If anything, the correspondence reflects the parent's awareness of the impending deadline (see SRO Ex. D at p. 1 [stating that the "deadline would ordinarily fall on or about April 1, 2026]).
[5] In her March 31, 2026 letter, the parent clarified that she sought an enlargement of the page limitations for the memorandum of law, not to the request for review itself (Parent Ex. E at pp. 2-3). The parent submitted a copy of the request for review and memorandum of law to OSR with this letter. The correspondence as included with the parent's exhibit on appeal did not include the attachments.
[6] In OSR's April 1, 2026 letter to the parent, the parent was advised that, because a determination as to whether to excuse a late service of a request for review could only be made after a request for review was filed, an extension of time could not be granted as it would be in contravention of State regulations (SRO Ex. F; see 8 NYCR 279.13). Nevertheless, the letter advised the parent that she could serve the district with the request for review and then submit an extension request to submit a memorandum of law that complied with the page limitations (SRO Ex. F). The parent opted not to take advantage of this option.