STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-586
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 Gil Auslander, 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 offer an appropriate educational program to respondents' (the parents') daughter and ordered it to fund said student's private school tuition 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 hearing record includes limited information regarding the student's educational history, and the parties' familiarity with this matter is presumed. Therefore, the student's educational history, the procedural history of the case, and the IHO's decision will not be recited in detail.
According to the parents, the student was found eligible for special education as a student with a speech or language impairment, and on July 9, 2025, a CSE developed an IEP for the student, including recommendations for integrated co-teaching (ICT) services and speech-language therapy (Parent Exs. A at p. 1; B at p. 1; C at p. 1; P ¶¶ 2-3).
In a letter to the district dated August 19, 2025, the parents, through their attorney, expressed concerns with the July 2025 IEP (Parent Ex. B at pp. 1-2). The August 2025 letter also expressed the parents' intention, absent an appropriate public-school placement, to enroll the student in the Little Mentchen BM Program (Little Mentchen) for the 2025-26 school year and seek public funding for such unilateral placement (id. at p. 2).
On September 3, 2025, the student's mother signed an enrollment contract with Little Mentchen for its 2025-26 academic year, which ran from September 3, 2025 through June 17, 2026 (see Parent Exs. D at pp. 1, 3; P ¶ 1). Under her contract with Little Mentchen, the signatory would be responsible for paying the full tuition amount of $120,000.00 unless she withdrew the student's enrollment in accordance with the contract's terms or secured funding from the district (Parent Ex. D at pp. 1-3).
The student began attending kindergarten at Little Mentchen on September 3, 2025 (Parent Exs. F; I; J at p. 1).
In a follow-up letter to the district dated September 10, 2025, the parents, through their attorney, reiterated their concerns with the recommended program and placement (Parent Ex. C at pp. 1-2). The September 2025 letter also reported that, when the parents visited the assigned public school on September 4, 2025, the staff could not confirm that a seat was available for the student (id. at p. 2). Finally, the letter indicated that the parents would continue the student's enrollment at Little Mentchen and seek public funding therefor (id.).
A. Due Process Complaint Notice and Subsequent Events
In a due process complaint notice dated January 15, 2026, the parents, through their attorney, alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 school year as a result of procedural flaws in the CSE process and substantive deficiencies in the July 2025 IEP (Parent Ex. A at pp. 1-2). More specifically, the parents alleged that the July 2025 CSE failed to conduct and consider adequate evaluations, prevented the parents from fully participating in the decision-making process, made predetermined recommendations, failed to recommend an adequately supportive placement, failed to address the student's social/emotional needs, and failed to provide adequate prior written notice (id.). Additionally, the parents alleged that staff at the assigned public school could not confirm that a seat was available for the student (id. at p. 2). Thus, according to the parents, they "had no choice but to secure an appropriate unilateral placement" (id. at p. 3). As relief, the parents requested funding and/or reimbursement of the student's tuition at Little Mentchen for the 2025-26 school year (id.).
An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter. During a prehearing conference on February 18, 2026, the IHO informed the parties that she intended to "certify the issues for the due process hearing" and that issues which were not certified could not be "raise[d] for the first time at the hearing" (Tr. pp. 2, 18). In a prehearing conference summary and order dated February 18, 2026, the IHO listed five issues which "were identified as the basis of the parents' claim that the [district] failed to provide a FAPE" (IHO Ex. II at pp. 1-2). The prehearing conference summary and order noted that the district's "representative did not set forth the [district]'s position regarding the issues" and "shall be prepared to" do so at a status conference on February 25, 2026 (id. at p. 2). Status conferences took place on February 25, 2026 and March 4, 2026, during which district's counsel had the opportunity to set forth the district's position on the legal issues raised by the parents (see Tr. pp. 28-29, 33, 57-58). During the March 4th conference, the IHO informed the parties that the district would be precluded from contesting the issues raised by the parents or presenting evidence at the impartial hearing because counsel declined to provide the district's position regarding the specific issues identified and discussed during the prior conferences (Tr. pp. 57-58).
B. Impartial Hearing and Impartial Hearing Officer Decision
An impartial hearing convened on March 19, 2026 and concluded the same day (Tr. pp. 64, 133). During the impartial hearing, the parents offered various exhibits, each of which the IHO admitted into evidence (see Tr. pp. 81-82; Parent Exs. A-P). The parents' exhibits included testimony via affidavit from Little Mentchen's director of special education services and the student's mother, both of whom appeared for cross-examination (Tr. pp. 87-88, 114-15; Parent Exs. O; P). Despite the IHO's prior ruling prohibiting the district from presenting evidence, the district offered various exhibits for admission into evidence (Tr. pp. 66, 68-69, 74). The IHO allowed counsel the opportunity to explain the documents' relevance to the issues identified during the prehearing conferences but ultimately excluded the district's proposed exhibits (see Tr. pp. 66-79).[1]
In a decision dated March 23, 2026, the IHO explained that the district was precluded from contesting the parents' FAPE claim or presenting evidence because its counsel failed to "comply with reasonable directives designed to" give the parties notice of the disputed issues and a "fair opportunity to participate in the process" (IHO Decision at pp. 2-3, 5). The IHO further explained that, despite several opportunities to clarify the district's position on the specific "issues identified for the hearing," counsel provided only conclusory assertions and "offered no cognizable legal theory or factual basis" for its contention that the district offered a FAPE (id. at pp. 2-3).[2] Thus, according to the IHO, the district "failed to establish that the student was offered a FAPE for the 2025-2026 school year" (id. at p. 3).
Turning to the appropriateness of the unilateral placement, the IHO found that Little Mentchen assessed the student, "created an individualized program to address the student's needs," and "utilized a comprehensive approach to meet the student's [individual] needs with collaboration among teachers and providers" (IHO Decision at p. 4). Additionally, the IHO found "that the instruction offered was reasonably calculated to enable the [student] to receive educational benefits" and that the student demonstrated progress (id. [internal quotation and citation omitted]). Based on those findings, the IHO concluded that the parents "met their burden of establishing that" Little Mentchen offered an appropriate educational program (id.).
As for equitable considerations, the IHO found "nothing in the record that warrants a reduction of tuition funding" and concluded that equity demands full, public funding of "the student's private school tuition for the 2025-2026 school year" (IHO Decision at p. 5). The IHO noted that the parents paid $1,116.66 out of the total, annual tuition of $120,000.00, leaving a balance of $118,8883.34 due to Little Mentchen (id.). Accordingly, the IHO ordered that the district fund the cost of the student's attendance at Little Mentchen for the 2025-26 school year by payment of $118,883.34 directly to the school and reimbursement of $1,116.66 to the parents (id.).
IV. Appeal for State-Level Review
The district appeals, contending that the IHO violated its right to due process. More specifically, the district contends the IHO predetermined the hearing outcome, mischaracterized counsel's conduct, and abused her discretion by improperly precluding the district from contesting the parent's FAPE claim or presenting documentary evidence. Additionally, the district contends that the IHO "failed to reasonably apply her individual rules" and that one such "rule is ambiguous, vague, and in potential conflict with statutory and regulatory entitlements" (Req. for Rev. ¶ 29).[3] The district asks that an SRO reverse the IHO's decision in its entirety and remand the case to a different IHO for further proceedings, allowing the district to present evidence and arguments in its defense.
The parents' position is unknown, as they have not interposed an answer to the district's request for review.
V. Discussion – Timeliness of Request for Review
As a threshold matter, I must determine whether the district'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]).[4] 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, the district failed to initiate its appeal in accordance with the timelines prescribed in Part 279 of the State regulations. The IHO's decision is dated March 23, 2026 (IHO Decision at p. 5). Hence, the last day to effectuate service of a notice of intention to seek review was April 17, 2026, while the last day to effectuate service of a notice of request for review and verified request for review was May 4, 2026 (see 8 NYCRR 279.2[a]-[b]; 279.4[a]).[5] Yet, according to the district's affirmation of service, a process server personally served the student's mother with a notice of intention to seek review, a notice of request for review, and a verified request for review on May 6, 2026 (Dist. Affir. of Service). I note that the State regulations grant an SRO discretion to review an IHO's decision "notwithstanding a party's failure to timely serve a notice of intention to seek review" (8 NYCRR 279.2[f]). In this case, however, the request for review was also untimely.
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 a cover letter accompanying the district's filing with the Office of State Review, a district representative asks that an SRO excuse the request for review's lateness, citing the "need to effectuate personal service" and the short deadline to do so (Dist. Letter at p. 1). The letter states that, despite "work[ing] diligently to finalize the [request for review] to [its] process server for timely personal service on Friday[,] May 1, 2026," the district was unable to attempt service until Monday, May 4, 2026 and did not accomplish service until Wednesday, May 6, 2026 (id.).
Although the district has attempted to explain the delay in accomplishing service, it has not provided its explanation in the request for review itself, as the State regulations require (8 NYCRR 279.13), and more importantly, it has not asserted good cause. The reason for the district's inability to finalize the request for review prior to May 1st or attempt service prior to May 4th remains unclear, as the district's explanation lacks specificity. Notwithstanding the lack of detail, the district's explanation "may be essentially categorized as law office failure, which, standing alone, will not suffice to excuse the delay" (Application of a Student with a Disability, Appeal No. 18-021).[6] Generally, courts are unwilling to accept law office failure as a reasonable excuse absent a "detailed and credible explanation of the default at issue" (Scholem v. Acadia Realty Ltd. Partnership, 144 A.D.3d 1012, 1013 [2d Dep't 2016], citing Sarcona v. J & J Air Container Station, Inc., 111 A.D.3d 914, 915 [2d Dep't 2013]). A court found good cause, for example, where the defendant "submitted affidavits, which, taken together, set forth a detailed and credible explanation for the failure to produce [] witnesses for deposition, based on acts of misconduct and deception on the part of the associate attorney handling the matter for the defendant's attorneys" (Scholem, 144 A.D.3d at 1013 [internal citations omitted]). Conversely, "[l]aw office failure should not be excused where," as here, the assertions "are conclusory and unsubstantiated" (Blake v. U.S., 109 A.D.3d 504, 505 [2d Dep't 2013], citing Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 789-90 [2d Dep't 2011]).
Considering that the district has not asserted good cause for its failure to effectuate timely service upon the parents, in an exercise of my discretion, the appeal is dismissed (8 NYCRR 279.13; see 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. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 365-67 [S.D.N.Y. 2013]; T.W., 891 F. Supp. 2d at 440-41; Kelly v. Saratoga Springs City Sch. Dist., 2009 WL 3163146, at *4-*5 [Sept. 25, 2009] [upholding dismissal of a petition served three days late]; Keramaty v. Arlington Cent. Sch. Dist., 2006 WL 8461781, at *14 [S.D.N.Y. Jan. 25, 2006], at *39-*41 [S.D.N.Y. Jan. 25, 2006] [upholding dismissal of a petition served one day late], adopted 05-CV-0006 [S.D.N.Y. Feb. 28, 2006]; Application of a Student with a Disability, Appeal No. 18-046 [dismissing request for review for being served one day late]).
VI. Conclusion
Having found that the district failed to properly initiate this appeal by effectuating timely service upon the parents, and there being no good 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: May 29, 2026
Justyn P. Bates
STATE REVIEW OFFICER
Footnotes
[1] Proposed District Exhibits 1 through 11 were excluded (Tr. pp. 66, 77-79).
[2] The IHO noted that district's counsel did not make a "request to vacate the preclusion order[] [or] provide a reason for the failure to participate" (IHO Decision at p. 3).
[3] The district challenges the following provision of Rule 4(g) from the IHO's interim order: "[T]he IHO will certify the issues for the due process hearing[,] and a due process hearing will be scheduled" (IHO Ex. I at p. 3).
[4] 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]).
[5] The 40th day after the date of the IHO's Decision was Saturday, May 2, 2026; hence, the district was required to personally serve a notice of request for review and verified request for review by Monday, May 4, 2026 (see IHO Decision at p. 5; 8 NYCRR 279.4[a]; 279.11[b]).
[6] To the extent that district's counsel encountered challenges with scheduling, availability, and/or time management, those matters were within counsel's control and would not excuse untimely service (see 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"]; T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 441 [W.D.N.Y. 2012] [stating that "delays due to scheduling difficulties or lack of availability on the part of parties or counsel are not typically found to be 'good cause'"]; Application of a Child with a Disability, Appeal No. 05-106 [finding that the stated reasons for untimely service, which included a "dense" hearing record and time constraints due to, among other things, professional obligations, did not constitute good cause]).