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 for an award of compensatory education, independent educational evaluations (IEEs) at public expense, and reimbursement of private special education services secured by the parent for her son for the 2024-25 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 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's educational history is not necessary. Briefly, the evidence in the hearing record indicates that a CSE convened on May 28, 2024 to develop an IESP for the student, with a projected implementation date of June 11, 2024 (Dist. Ex. 5 at p. 1).  The CSE found the student remained eligible for special education services as a student with an other health impairment and recommended that he receive five periods per week of individual special education teacher support services (SETSS); two 30-minute sessions per week of individual speech-language therapy; two 30-minute sessions per week of individual occupational therapy (OT); and two 30-minute sessions per week of individual physical therapy (PT) (id. at pp. 1, 9-10).  According to the IESP, the "[p]arent expressed concerns regarding sending [the student] to school" and, at the time of the meeting, the student was "home schooled" (id. at p. 2).  The hearing record includes a form on the district's letterhead, which the parent signed and dated May 28, 2024, to inform the district that the student would be homeschooled for the 2024-25 school year and she was seeking special education services from the district (Dist. Ex. 8).

On July 1, 2024, the parent executed a contract with Early Intervention Matters, Inc., for the provision of 10 hours per week of 1:1 SETSS to the student for the 2024-25 school year (Parent Ex. C).

According to the hearing record, on September 17, 2024, the district sent the parent a "SETSS form" or "P4" form in order for the parent to arrange for the student to receive five hours per week of SETSS through private providers (Parent Exs. H at p. 2; K at pp. 1-2).  In an email to the district dated September 24, 2024, the parent objected to the "decrease" in services relative to the prior school year when he received 10 hours per week of SETSS, and three 30-minute sessions each of speech-language therapy, OT, and PT (Parent Ex. K at pp. 2-3).

A. Due Process Complaint Notice

In a due process complaint notice dated November 4, 2024, the parent alleged, through her attorneys, that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Pendency Ex. D at pp. 1-11).[1]  Specifically, the parent alleged the district failed to properly evaluate the student, failed to include the parent at the May 2024 CSE meeting, failed to send a prior written notice, failed to recommend parent counseling and training, failed to recommend appropriate services for the student, failed to implement the services that were recommended, failed to respond to the parent's request for funding of IEEs, failed to sufficiently address student's behavioral needs, failed to provide the parent with a full and complete version of the student's educational records, and failed to provide home based applied behavior analysis (ABA) services with board-certified behavior analyst (BCBA) supervision (id. at pp. 4-7).  For relief, the parent sought funding for a unilaterally obtained program consisting of "tuition for the private placement and for SETSS and related services"; an order directing the district to place the student in a State-approved nonpublic school; funding for an IEE; and compensatory education (id. at pp. 8-10).

B. Impartial Hearing and Impartial Hearing Officer Decisions

The matter was assigned to an IHO with the Office of Administrative Trials and Hearings (OATH).  On December 23, 2024, a prehearing conference was held at which the IHO and district's attorney appeared; neither of the parent's two attorneys appeared (Tr. pp. 1-7; IHO Decision at p. 3).[2]  On January 15, 2025, parent's counsel submitted a pendency brief on behalf of the parent , and, on January 22, 2025, the district submitted a pendency brief (IHO Pendency Exs. 1; 2).  In an interim decision dated January 23, 2025, the IHO found that the student's stay put placement lay in an unappealed IHO decision dated July 13, 2024 and consisted of 10 hours per week of special education itinerant teacher (SEIT) services, three 30-minute sessions per week each of speech-language therapy, OT, and PT, as well as four sessions per year of parent counseling and training (Interim IHO Decision).   An impartial hearing convened on January 30, 2025 and concluded on March 17, 2025, after two days of proceedings (Tr. pp. 8-114).  Co-counsel was present on behalf of the parent at the hearing (id.)  On April 28, 2025, co-counsel submitted the parent's closing brief (IHO Ex. 12 at p. 16).  The district also submitted a closing brief dated April 28, 2025 (IHO Ex. 11)..

In a decision dated May 14, 2025, the IHO found that the district failed to meet its burden to prove that it offered the student FAPE for the 2024-25 school year, the parent failed to show the privately obtained services from Early Intervention Matters for the student were appropriate, and "the equities do not wholly support the [p]arent" (IHO Decision at pp. 15-23, 32).  The IHO denied the parent's request for district funding of unilaterally obtained services, IEEs, and compensatory education (id. at p. 32).  The IHO ordered the district to conduct an evaluation of the student in accordance with the law "if the [s]tudent's needs so warrant"; the parent to consent to the evaluations in a timely manner and make the student available; and a CSE to convene after the evaluation(s) are complete to determine an appropriate educational program for the student (id.).

IV. Appeal for State-Level Review

The parent appeals, by and through counsel, alleging that the IHO erred in finding that the private services the parent secured were not appropriate and that equitable considerations did not wholly favor the parent.  Parent seeks compensatory education, IEEs, parent counseling and training, and funding for the unilaterally obtained SETSS.  Parent requests the undersigned excuse parent's untimely request for review.

In an answer, the district argues that the parent's request for review should be dismissed because it was not timely served.  Further, the district asserts that the IHO's decision should be upheld in its entirety.[3]  The parent responds to the district's answer in a reply.

V. Discussion

As a threshold matter, it must be determined whether the parent's appeal should be dismissed for untimeliness.

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 also T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 441 [W.D.N.Y. 2012]).

Here, the parent failed to timely initiate her appeal in accordance with Part 279 of the State regulations.  The IHO's decision was dated May 14, 2025; therefore, the parent had until Monday, June 23, 2025, 40 days after the date of the IHO decision, to serve the district with a verified request for review (see IHO Decision at pp. 3, 32-33; see also 8 NYCRR 279.4[a]).  The parent's initial request for review was not served until June 24, 2025 (June 24, 2025 Parent Aff. of Serv.).[4]  Contrary to the regulatory requirements described above, the June 24, 2025 request for review did not acknowledge that it was untimely served or assert good cause for said untimeliness (see June 24, 2025 Req. for Rev. at pp. 1-10).  The June 24, 2025 request for review was rejected by the undersigned for improper verification.  Upon granting leave for the parent to amend her request for review, to remediate the improper verification, I requested that the parent or parent's counsel also address the untimeliness of the June 24, 2025 request for review and assert what, if any, good cause there was for the delay.

Parent served her amended request for review on July 21, 2025 with proper verification (see Amended Req. for Rev.).[5]  In addressing the untimeliness of the June 24, 2025 request for review, the amended request for review alleges that the June 24, 2025 request for review was "prepared and ready for submission; however, unforeseen events while [parent's counsel] was attending a program in Israel caused significant delay" (id. at p. 3).  Specifically, parent's counsel opted to travel to Israel, during the 40-day window for parent to file her request for review, to attend a course or courses (see Amended Req. for Rev. at p 3; Aff. of J. Kerben at ¶ 2; SRO Ex. A at pp. 1-3).  Counsel describes the situation in Israel, at the time of booking the trip, as "relatively safe" and notes Delta Air Lines "had resumed its flights to Israel" (Aff. of J. Kerben at ¶ 3).[6]  Counsel asserts she would not have traveled "if she had known the conditions would escalate to a dangerous level" (id.).  On June 12, 2025, missiles were launched into Israel (SRO Exs. B at pp. 5-8, F at pp. 10-13).  Counsel reports the missile attack necessitated seeking shelter and severely disrupted counsel's ability to communicate and function normally (see SRO Exs. B at pp. 5-8, F at pp. 10-13; see also Aff. of J. Kerben at ¶ 4).  Counsel anticipated returning to the United States June 17, 2025, however, that flight was cancelled due to the ongoing conflict in Israel (see SRO Exs. C at p. 8; D-F).  Counsel was not able to secure a return flight until June 22, 2025, arriving in New York on June 23, 2025 (SRO Ex. E at pp. 1-10).  Parent requests the SRO exercise discretion and excuse the late filing due to the circumstances surrounding the delay (i.e., the missile attack and conflict in Israel impacting counsel's ability to communicate remotely and delaying counsel's return) (Amended Req. for Rev. at pp. 3-4).  In its answer, the district raises the issue of foreseeability of counsel encountering dangerous conditions while traveling in Israel and references travel advisories warning against travel to Israel "around the relevant period" (Answer ¶ 20).

As noted above, to exercise my discretion and excuse the parent's late request for review, there must be good cause for the untimeliness.  When determining whether or not to excuse untimely pleadings, courts have consistently held that attorneys must anticipate and mitigate foreseeable risks, including travel-related delays (Rockwell Automation, Inc, v. United States, 7 F. Supp. 3d 1278, 1299-1304 [Ct. Intl. Trade 2014]; see also Davila-Alvarez v. Escuela de Medicina Universidad Cent. del Caribe, 257 F.3d 58, 63-66 [1st Cir. 2001]).  Thus, the crux of the matter is whether the disruption in Israel was foreseeable and, if foreseeable, did counsel sufficiently anticipate and mitigate the risk it posed.

With regard to foreseeability, I take judicial notice of a U.S. Department of State travel advisories for Israel that was issued January 17, 2025, more than five months before counsel's May 28, 2025 departure for Israel and continuing through the timeframe serving an appeal (Travel Advisories: Travel Advisories by destination [U.S. Dep't of State], available at https://travel.state.gov/en/international-travel/travel-advisories.html#accordion-45664e3835-item-ee5484c8be [filtering by destination "Israel"]).  The January 17, 2025 advisory, recommended reconsideration of travel to Israel "due to serious risks to safety and security" (id.).  In addition to this advisory, there were warnings about potential missile strikes, of the type counsel argues caused the late service of the request for review, issued by the U.S. Embassy in Jerusalem (embassy) before counsel's departure (see SRO Ex. B at pp.1-4).  On March 22, 2025, the embassy issued a security alert for Israel, the West Bank, and Gaza, which read, in relevant part, that

[d]ue to the current evolving security situation, including the resumption of red alerts and large-scale demonstrations, the U.S. Embassy reminds U.S. citizens of the continued need for caution and increased personal security awareness – including avoiding large gatherings and demonstrations, and knowing the location of the nearest shelter in the event of a red alert as security incidents, including mortar, rocket, . . . missile fire, and unmanned aircraft system (UAS) intrusions, often take place without any warning.  The security environment is complex and can change quickly.

(Security Alert: U.S. Embassy Jerusalem [Mar. 22, 2025] [emphasis added], available at https://il.usembassy.gov/security-alert-u-s-embassy-jerusalem-march-22-2025/;  see also SRO Ex. B at pp. 1-2).  Then, on May 23, 2025, one day before counsel's flight was confirmed and five days before counsel departed, the embassy issued another security alert, for Israel, the West Bank, and Gaza, stating that

[d]ue to the current regional tensions, including more frequent red alerts, the U.S. Embassy reminds U.S. citizens of the continued need for caution and increased personal security awareness – including knowing the location of the nearest shelter in the event of a red alert as security incidents, including mortar, rocket, . . . missile fire, and unmanned aircraft system (UAS) intrusions, often take place without any warning.  The security environment is complex and can change quickly.

(Security Alert: U.S. Embassy Jerusalem [Mar. 23, 2025] [emphasis added], available at https://il.usembassy.gov/security-alert-u-s-embassy-jerusalem-may-23-2025; SRO Ex. B at p. 3).  Given the above referenced advisories for reconsideration of travel to Israel due to potential danger, including but not limited to missile fire (the precise type of event counsel experienced and alleges delayed service of the request for review), I find the situation counsel faced while harrowing was nevertheless foreseeable.  Therefore, the inquiry now turns to what actions counsel took to mitigate the risks of delay in serving the parent's request for review due to counsel's travel abroad during the appeal window.

Counsel presents no evidence of any efforts she made before her departure on May 28, 2025, to mitigate the risk of delayed service of the parent's appeal posed by counsel's travel.  There is no indication that counsel sought coverage of the parent's appeal prior to her departure, sought to complete and serve the request for review prior to counsel's departure, or advised parent how service could be completed in a timely manner if counsel was unreachable.  With regards to arranging coverage, counsel had co-counsel throughout the impartial hearing (Tr. pp. 3, 8-114; Parent Pendency Ex. D. at p. 11; IHO Ex. at p. 16).[7]  Yet, counsel offered no explanation as to why co-counsel did not or could not assume oversight of the appeal during counsel's travels abroad.  Similarly, there is no indication that counsel requested that colleague(s) and/or staff at her law firm oversee the appeal and ensure timely service during her absence.[8]  Even assuming, arguendo, that counsel had offered explanations as to why there were no options for attorney coverage of the appeal, counsel could have drafted the request for review prior to her departure and served it or instructed the parent as to how and when it must be served in case of emergency.  The amended request for review describes the "petition" (i.e., June 24, 2025 request for review) as "prepared and ready for submission" and counsel asserts in her July 3, 2025 letter that she was "in communication with the parent and . . . sent the [request for review] to the parent and had her notarize the documents while [counsel was] away in Israel.  The parent's initial verification was notarized on June 20, 2024 (June 20, 2025 Parent Aff. of Verif.).  Counsel offers no explanation as to why, given the parent allegedly had a final draft of the request for review in her custody on June 20, 2024, it was not timely served by June 24, 2025, especially given the district's acceptance of service via email (see July 21, 2025 Parent Aff. of Serv. [indicating the district's consent to accept service by email]; June 24, 2025 Parent Aff. of Serv. [including email proof of service receipt]).[9]

Opting to physically attend an academic program in Israel, during a time of heightened risk of attack, when the U.S. officials were advising reconsideration of travel to Israel is, in my view, very courageous, however, counsel's courage does not negate her duty to anticipate and mitigate the risk her travel posed to timely service of the parent's request for review.  Here, the risk of missile attack during counsel's travel was foreseeable, as evidenced by the alerts specifically warning of missile attacks and travel advisories issued recommending reconsideration of travel to Israel (SRO Ex. B at pp. 1-4).  Despite the foreseeable risk, no evidence was presented that counsel attempted to mitigate it.  It is comforting to say the least that counsel survived her ordeal and returned home safely.  However, given the foreseeability of an attack in Israel during counsel's trip; the voluntary nature of counsel's trip; the timing of the trip, in the middle of the parent's known appeal window; counsel's failure to work with co-counsel, her own office, and/or the parent to ensure timely submission of the request for review in the event she was out of touch and/or delayed in Israel; and lack of evidence that counsel sought to otherwise mitigate the potential impact of her trip on timely filing of the request for review, I find the parent's attorney has not demonstrated good cause for the late filing.

Because the parent failed to properly initiate this appeal by timely serving their request for review, and there is not sufficient good cause asserted in the request for review or evidenced in the supporting documents submitted by counsel, 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 exercised my discretion to dismiss the request for review because the parent failed to timely initiate the appeal pursuant to State regulations, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.