STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-579
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: Denis Law Group, PLLC, attorneys for petitioner, by Marcel P. Denis, 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 daughter's private services delivered by Beyond Limits Support Services (Beyond Limits) for the 2024-25 and 2025-26 school years. 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 programing 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 facts relating to the student is not necessary.
Briefly, a CSE convened on October 31, 2022 and developed an IESP for the student with a projected implementation date of October 31, 2022 (Dist. Ex. 2 at p. 1). The October 2022 CSE recommended that the student receive the following services and supports: seven periods per week of group special education teacher support services (SETSS); two 30-minute sessions per week of individual counseling services; two 30-minute sessions per week of individual occupational therapy (OT); and full-time individual paraprofessional services for health (id. at p. 7).
In a prior proceeding regarding the 2021-22 school year, an IHO issued a decision dated February 13, 2023 (see Parent Ex. B).
For the 2024-25 school year, the parent placed the student in a seventh-grade class in a nonpublic school (Parent Ex. K at p. 1). On May 22, 2024, counsel for the parent emailed the district a letter requesting special education services for the 2024-25 school year (Parent Ex. D).[1], [2] The parent signed a contract with Beyond Limits on September 10, 2024 for the provision of special education services during the 2024-25 school year; the contract included rates for SETSS at $195 per hour and paraprofessional services at $70 per hour (see Parent Ex. H at pp. 1-2).
On November 26, 2024, the parent's attorney sent the district an email, which included a letter notifying the district of the parent's intention "to implement the IESP on [her] own and seek reimbursement or direct payment from [the district]" (Parent Ex. F).
According to the information available in the hearing record, Beyond Limits was providing the student with seven hours of SETSS per week and full-time paraprofessional services for the 2024-25 school year (Parent Exs. K at p. 1; O ¶¶ 13, 19).
The student was parentally placed in an eighth-grade class at a private school for the 2025-26 school year (Parent Ex. L at p. 1). On May 29, 2025, the parent sent an email to the district, which included a letter, dated May 2, 2025, requesting special education services for the 2025-26 school year (Parent Ex. E; Dist. Ex. 5).
On August 26, 2025, the parent signed a contract with Beyond Limits for the provision of special education services for the 2025-26 school year; the contract included rates for SETSS at $195 per hour and paraprofessional services at $70 per hour (see Parent Ex. I at pp. 2, 3). On August 29, 2025, the parent's attorney emailed a letter to the district notifying the district of the parent's intention "to implement the IESP on [her] own and seek reimbursement or direct payment from [the district]" (see Parent Ex. G).
According to the information available in the hearing record, Beyond Limits was providing the student with seven hours of SETSS per week and full-time paraprofessional services for the 2025-26 school year (Parent Exs. M at p. 1; O ¶¶ 13, 19).
In a due process complaint notice dated January 14, 2026, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 and 2025-26 school years because the CSE has not convened to create a new IESP for the student since October 2022 and the parent was concerned about implementation of the October 2022 IESP for the 2024-25 and 2025-26 school years because the district failed to implement its recommendations (Parent Ex. A at pp. 1, 2). As relief, the parent requested an order directing the district to fund the program outlined in the October 2022 IESP at the parent's provider's contracted for rates for the 2024-25 and 2025-26 school years and further requested that the IHO order the district to fund a bank of compensatory education for any missed services at the parent's provider's contracted for rates (id. at p. 3).
An impartial hearing convened and concluded before an IHO with the Office of Administrative Trials and Hearings (OATH) on February 19, 2026 (Tr. pp. 1-22). Overall, the IHO determined that the district did not offer the student a FAPE for either of the school years at issue, the parent did not meet her burden of proving the appropriateness of the unilaterally obtained services, and if she had reached equitable considerations, a reduction any relief awarded would have been warranted (IHO Decision at pp. 23-25). Accordingly, the IHO dismissed the parent's complaint (id. at p. 25).
IV. Appeal for State-Level Review
The parent appeals from the IHO's decision, seeking determinations that the IHO erred in denying pendency, in finding that the parent did not incur a financial obligation, that the SETSS and paraprofessional services were appropriate, and that the IHO's findings as to equitable considerations were not supported by the hearing record. Due to the procedural nature of this matter, the parties' familiarity with the particular issues raised in the parent's request for review is presumed and will not be recited here in detail other than as discussed below regarding the timeliness of the appeal.
It must be noted that the district requested an extension of time to serve an answer and cross-appeal, but this request was denied by the Office of State Review (OSR) because the time to answer the parent's appeal had already passed. On May 12, 2026, the district submitted a letter to OSR, with a copy to the parent's attorney, which stated that the parent's appeal "was untimely served upon the [district] and thus the SRO should dismiss the matter." The parent responded to the district's letter stating that although the IHO decision was dated March 26, 2026, the parent "did not receive the [IHO decision] until March 28, 2026."
VI. Discussion - Timeliness of Appeal
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. Because the IHO decision in the present matter is dated March 26, 2026 (see IHO Decision at pp. 1, 25), the parent was required to serve the request for review upon the district no later than May 5, 2026 (see 8 NYCRR 279.4[a]). However, the parent's affidavit of service indicates that the parent served the district by email on May 6, 2026, which renders the request for review untimely.
Additionally, State regulations provide that good cause for a failure to timely serve a request for review "shall be set forth in the request for review" (8 NYCRR 279.13). In this instance, the parent failed to assert good cause in her request for review for the failure to timely initiate the appeal from the IHO's decision (see Req. for Rev.).
Even if the parent's argument submitted after the request for review were permitted, it would not be successful. In a letter dated May 12, 2026, the parent asserts that, although the IHO decision was dated March 26, 2026, she did not receive the IHO decision until March 28, 2026. The parent's attorney explained that the parent "reasonably calculated the 40-day deadline from the date she actually received the [IHO Decision], March 28, 2026, rather than from the date it was signed. According to counsel for the parent, based on the date of receipt of the IHO decision, the parent understood the 40-day deadline to be May 7, 2026. However, this argument is contrary to the language of the regulation, which was included as a part of the IHO decision under a section titled "NOTICE OF RIGHT TO APPEAL" which specified that "[w]ithin 40 days of the date of this decision, the parent . . . has a right to appeal the decision" and further explains that "[a]n appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed" (IHO Decision at p. 26).
As has been addressed in prior proceedings, 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 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.
Nevertheless, 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 that might lead to a finding of good cause such instances as those instances where 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). This matter presents neither circumstance as the parent had ample time (38 days) to timely serve the request for review after receipt of the IHO decision received. Accordingly, there is insufficient basis to exercise my discretion and excuse the parent's failure to timely appeal from the IHO's decision (see 8 NYCRR 279.13).
Because the parent failed to properly initiate this appeal by effectuating timely service upon the district, and there is no good cause asserted in the request for review, in an exercise of my discretion, the appeal is dismissed (8 NYCRR 279.13; see 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. 21-054 [dismissing request for review that was served within 40 days of the parents' receipt of the IHO decision but 44 days from the issuance of the IHO decision]; 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 request for review must be dismissed because the parent failed to timely initiate the appeal, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] According to the district's exhibits, the district received a copy of a similar letter on June 10, 2024; however, that letter indicated it was signed by the parent on May 8, 2024 and indicates the student was in sixth grade (Dist. Ex. 3).
[2] The parent's attorney for the letters prior to the hearing, the due process complaint notice, and the hearing was a different attorney from the attorney representing the parent on appeal.