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 to be reimbursed for her daughter's private services delivered by The Cathedral School (Cathedral) for the 2022-23, 2023-24, and 2024-25 school years.  The district cross-appeals from the IHO's interim decision on pendency.  The appeal must be dismissed.  The cross-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

Briefly, the student has been found eligible for special education services as a student with an other health impairment and diagnosed with cerebral palsy with left hemiplegia, which impacts her mobility, motor coordination, physical strength, emotional regulation, attention, and executive functioning (Parent Ex. G at p. 1; Dist. Ex. 4 at pp. 1-4).  A CSE convened on April 1, 2022 and developed an individualized education program (IEP) for the student with a projected implementation date of September 1, 2022 (Dist. Ex. 4 at pp. 1, 25).  The April 2022 CSE recommended a program consisting of related services and supplementary aids and services; specifically, the CSE recommended that the student receive one 30-minute session per week of group counseling, three 30-minute sessions per week of individual occupational therapy (OT), two 30-minute sessions per week of individual physical therapy (PT), one 30-minute session per week of group PT, two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, and the support of full-time health paraprofessional services (id. at pp. 18-19).  In or around November 2022, the student was parentally placed at Cathedral for the 2022-23 school year (Dist. Ex. 8 at p. 1).

The parent continued the student's placement at Cathedral for the 2023-24 school year (Dist. Ex. 10 at p. 2).  The CSE convened on August 17, 2023 and developed an IESP for the student with a projected implementation date of September 1, 2023 (Dist. Ex. 8 at p. 1).  The August 2023 CSE recommended that the student receive one period per week of direct group special education teacher support services (SETSS), three 45-minute sessions per week of individual OT, three 45-minute sessions per week of individual PT, three 45-minute sessions per week of individual speech-language therapy, and a full-time health paraprofessional (id. at p. 11).

The student remained unilaterally placed at Cathedral for the 2024-25 school year (Parent Ex. G ¶ 3; District Exs. 13 at p. 25; 18).  The CSE reconvened on October 8, 2024 and developed an IESP with a projected implementation date of October 22, 2024 (Dist. Ex. 13 at p. 1).  The October 2024 CSE recommended that the student receive all of the services recommended in the previous August 2023 IESP along with one 30-minute session per week of individual counseling and one 30 minute-session per week of group counseling (id. at pp. 22-23).

A district form, signed by the parent on September 17, 2024, indicated that the parent had placed the student at Cathedral at her own expense and that she wanted the student's special education services to continue to be provided by the district for the next school year, the 2024-25school year (Dist. Ex. 18).

A. Due Process Complaint Notice

In a due process complaint notice dated December 10, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23, 2023-24, and 2024-25 school years (see Parent Ex. A).  The parent contended that the April 2022 IEP, August 2023 IESP, and October 2024 IESP all failed to appropriately address the student's needs and thereby denied the student a FAPE for the 2022-23, 2023-24, and 2024-25 school years, respectively (id. at p. 5).  The parent further argued that the district failed to fully implement the recommended services for the student for each of the school years at issue (id.).  For relief, the parent sought an order directing the district to implement the recommended IESP services during the 2024-25 school year, or direct funding for those services delivered by providers chosen by the parent at their market rates, as well as compensatory services for each of the school years at issue, to be delivered by providers' of the parent's choosing at the providers' market rates (id. at pp. 5-6).

By due process response dated December 13, 2024, the district generally denied the parent's allegations and asserted that it intended to pursue all applicable defenses, including a June 1 notice affirmative defense (IHO Ex. IV).

B. Impartial Hearing Officer Decision

In an interim decision on pendency dated January 14, 2025, an IHO with the Office of Administrative Trials and Hearings (OATH) determined that the student's pendency program was based on the student's October 2024 IESP and rejected the district's argument that the student was not entitled to pendency because the student was unilaterally placed in a nonpublic school pursuant to § 3602-c of the Education Law, not the IDEA (Interim IHO Decision).

An impartial hearing convened before a different IHO with OATH on January 28, 2025 (see Tr. pp. 1-44).  In a decision dated April 7, 2025, the IHO found that the parent's claims for the 2022-23 school year were barred by the applicable statute of limitations and were therefore dismissed (IHO Decision at p. 3).  Turning to the claims relating to the 2023-24 and 2024-25 school years, the IHO found that the parent failed to present any evidence to demonstrate that she met the June 1 deadline for both school years (id. at pp. 5-6).  The IHO noted that the district asserted its intent to pursue a June 1 defense in its response to the parent's due process complaint notice and again in its opening statement (id. at p. 5; see IHO Ex. IV at p. 1).  Because the IHO did not agree with the parent that the district waived the June 1 deadline by at least partially implementing the recommended services, she dismissed all of the parent's claims with prejudice (IHO Decision at p. 6).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the district had not waived the June 1 deadline requirement by partially providing recommended services.  Specifically, the parent argues that prior written notices sent by the district at the start of the 2023-24 and 2024-25 school years signified an intent to provide services despite the lack of timely June 1 notices.  By taking affirmative steps to implement services, the district impliedly waived the June 1 deadline.  Even so, the parent argues that the district denied the student a FAPE for both school years by failing to implement all of the recommended services.

In her request for review, the parent acknowledges that she did not timely file her appeal in accordance with State regulations.  By way of explanation, the parent offered that the delay in filing was due to her lay advocate's good faith misunderstanding of the 40-day filing deadline.  The parent points to the lack of prejudice and urges the consideration of equitable factors, including the degree of the student's disabilities, the educational harm to the student, the parent's lack of legal knowledge, and the apparent lack of prejudice to the district. 

In an answer and cross-appeal, the district argues for the affirmation of the IHO's findings regarding the lack of a June 1 request.  In addition, the district seeks dismissal of the parent's request for review due to its untimeliness with lack of good cause shown.[1]  The district notes that while the parent attempts to explain the late filing, the explanation does not constitute good cause.  Finally, as a cross-appeal, the district seeks vacatur of the IHO's order on pendency, arguing that New York Education Law § 3602-c offers no legal mechanism for awarding pendency services to students.

In a reply and answer to the cross-appeal, the parent reasserts that the request for review should be accepted despite being untimely and argues that the district's cross-appeal challenging the pendency order should be denied.

V. Discussion – Timeliness of Appeal

As a threshold matter, it must be determined whether 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 issued her decision on April 7, 2025 (see IHO Decision).  Therefore, the parent had until May 19, 2025 to serve the district with a verified request for review (see IHO Decision; see also 8 NYCRR 279.4[a]; 279.11[b]).[2]  However, the verified request for review was not served until June 5, 2025, making the parent's appeal approximately 17 days late (Req. for Rev. at p. 7).

In attempting to establish good cause to excuse the failure to timely initiate the appeal in the request for review, the parent alleges that her lay advocate mistakenly understood the 40-day period in which to seek review to run from the filing of a timely notice of intention to seek review (Req. for Rev. at p. 4).[3]  The parent offers her timely filing of her notice of intention to seek review as evidence of her intention to comply with the regulations (id.).  Even taken as true that the parent relied on her advocate to her detriment, this explanation does not amount to "an event that the filing party had no control over" (see B.C. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 367 [S.D.N.Y. 2013]; Application of a Student with a Disability, Appeal No. 18-021 ["Generally, courts are unwilling to accept law office failure as a reasonable excuse absent a "'detailed and credible explanation of the default at issue'"], citing Scholem v. Acadia Realty Ltd. Partnership, 144 A.D.3d 1012, 1013 [2d Dep't 2016]; see also Application of a Student with a Disability, Appeal No. 24-425 [finding that parent's explanation relating to office internet difficulties did not constitute sufficient good cause]).[4]

The parent also asserts that the untimely appeal should be excused because the district was not prejudiced by the delay (Req. for Rev. at ¶4).  However, lack of prejudice to the district is not a reason why the verified request for review was not timely served (see B.C., 971 F. Supp. 2d at 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"]).  Accordingly, there is not a sufficient basis presented to exercise my discretion and excuse the parent's failure to timely appeal the IHO's decision (see 8 NYCRR 279.13; see also B.D.S. v. Southold Union Free Sch. Dist., 2011 WL 13305167, at *17 [E.D.N.Y. Apr. 26, 2011] [noting that "[i]nadvertence, mistake or neglect does not constitute good cause"]).

In this case, the district is correct that the appeal should be dismissed.  Because the parent failed to properly initiate this appeal by effectuating timely service upon the district, and there is not sufficient good cause asserted in the parent's request for review to excuse 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., 971 F. Supp. 2d at 365-67; 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]).

Finally, with respect to the district's cross-appeal, a cross-appeal is considered proper when it is served upon the petitioner together with a timely-served answer (see 8 NYCRR 279.4[a], [f]; 279.5); however, this is predicated upon the appeal itself being properly commenced.  In this matter, the request for review was not properly initiated and, therefore, there is no basis to consider the cross-appeal (see Endicott Johnson Corp. v. Liberty Mutual Insurance Co., 116 F.3d 53 [2d Cir. 1997] [finding plaintiff's untimely notice of appeal made defendant's subsequent cross-appeal also untimely]; Application of the Bd. of Educ., Appeal No. 12-059).  Thus, the district's cross-appeal is also dismissed.

VI. Conclusion

Having exercised my discretion to dismiss the request for review, and subsequent cross-appeal, because the parent failed to timely initiate the appeal pursuant to State regulations, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.