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 the decision of an impartial hearing officer (IHO) issued after remand, which denied her request for respondent (the district) to fund the full costs of her daughter's tuition, paraprofessional services, special transportation and nursing services at the International Academy for the Brain (iBrain) for the 12-month 2024-25 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

This appeal arises from an IHO's decision issued after a remand by an SRO for the IHO to determine whether the services unilaterally obtained by the parent were appropriate for the student for the 2024-25 school year and if appropriate, to determine whether equitable considerations weighed in favor of granting funding for the costs of tuition or related expenses (see Application of a Student with a Disability, Appeal No. 24-545).  As the parties' familiarity with this matter is presumed, the student's educational history and the procedural history of this matter will not be recited here in detail except as relevant to the instant appeal.

Briefly, a CSE convened on March 13, 2024, found the student eligible for special education and related services as a student with an other health impairment, and developed an IEP with an implementation date of March 22, 2024 (Dist. Ex. 1 at pp. 1, 44-45, 50, 54).[1]  The March 2024 CSE recommended that the student receive 12-month services consisting of an 8:1+1 special class in a specialized school with the related services of three periods per week of adapted physical education, four 60-minute sessions per week of individual occupational therapy (OT), one 60-minute session per week of OT in a group of three, three 60-minute sessions per week of individual physical therapy (PT), daily individual school nurse services as needed, five 60-minute sessions per week of individual speech-language therapy, daily, full-time individual paraprofessional services for health and ambulation, two times per week of individual assistive technology services as needed, and one 60-minute session per month of individual and group parent counseling and training (id. at pp. 1, 44-45, 50-52, 54).[2]  The March 2024 CSE recommended annual school personnel training for use of braces/orthotics, g-tube safety, use of direct instruction, hydration intake monitoring, and shunt precautions (id. at p. 45).  The CSE also recommended  special transportation from the closest safe curb to school (id. at p. 50).

In a due process complaint notice dated July 2, 2024, the parent alleged that the district failed to develop an appropriate IEP for the student for the 12-month 2024-25 school year, failed to recommend appropriate related services in the March 2024 IEP, failed to evaluate the student in all areas of suspected disability, failed to recommend an appropriate school placement for the student, and failed to recommend appropriate special transportation services resulting in a failure to offer the student a free appropriate public education (FAPE) for the 12-month 2024-25 school year (Parent Ex. A at pp. 8-10).  As relief, the parent sought direct funding by the district for the full costs of the student's attendance at iBrain for the 12-month 2024-25 school year including tuition, related services, 1:1 paraprofessional services, special transportation, and 1:1 nursing services (id. at pp. 11).

An IHO from the Office of Administrative Trials and Hearings (OATH) was appointed on July 8, 2024, and, after denying the parent's request for an expedited hearing timeline, the IHO and parties met for a prehearing conference on August 12, 2024 (Tr. pp. 1-15). As a result of the prehearing conference, the IHO set a briefing schedule for the issue of pendency and the district submitted a written brief on pendency (Tr. pp. 1-15; IHO Ex. IX). In addition, the district moved to dismiss the proceeding due to the parent's failure to appear for a resolution session and the parent submitted a response to the district's motion (IHO Exs. VII; VIII).  In an interim decision, dated August 27, 2024, the IHO denied the district's motion to dismiss and in an interim decision on pendency, dated September 12, 2024, the IHO granted the parent's pendency request finding that the student's pendency placement was based on the decision in Application of a Student with a Disability, Appeal No. 24-028 and that the reduction of costs on equitable factors ordered in that decision did not carry forward into subsequent school years (IHO Ex. XI).

The parties convened for an impartial hearing on September 12, 2024, which concluded on September 27, 2024 after two days of proceedings (Tr. pp. 16-125).  In a decision dated October 15, 2024, the IHO determined that the district offered the student a FAPE for the 2024-25 school year and denied the parent's request for relief (Oct. 15, 2024 IHO Decision at pp. 2, 6-8).

The parent appealed and the district cross-appealed the IHO's October 15, 2024 decision.  An SRO issued a decision on the parties' appeals on April 8, 2025, reversing that portion of the October 2024 IHO Decision which found that the district offered the student a FAPE for the 2024-25 school year, modified the IHO's interim order on pendency to reflect that the student's pendency service consisted of base tuition at iBrain and transportation services, and remanded the matter to the IHO to determine whether the services unilaterally obtained by the parent were appropriate for the student for the 2024-25 school year and whether equitable considerations weighed in favor of granting funding for the costs of tuition or related expenses (see Application of a Student with a Disability, Appeal No. 24-545).

Upon remand and as directed by the SRO, the IHO considered the evidence already before him regarding the appropriateness of the unilateral placement, which was based on the parent's documentary evidence.  In a decision dated May 30, 2025, the IHO found that the hearing record included a "robust proposed program of academic support, related services, and medical interventions for [the] [s]tudent for the 2024-25 school year" (May 30, 2025 IHO Decision at p. 8).  However, the IHO found that there was no evidence in the hearing record regarding the implementation or effectiveness of the student's program, nursing services, paraprofessional, or transportation services (id.).  The IHO went on to find that the parent failed to prove the appropriateness of iBrain (id. at p. 9).  After finding the parent's unilateral placement was inappropriate for the student for the 2024-25 school year, the IHO made alternate findings regarding equitable considerations, determining that no factors warranted a reduction in the amount of funding requested by the parent, had the IHO found iBrain appropriate for the student (id.).  The IHO then denied the parent's requested relief (id. at p 10).

IV. Appeal for State-Level Review

The parent appeals and argues that the IHO erred in finding that iBrain was not an appropriate unilateral placement, that the IHO improperly excluded evidence and testimony in violation of the parent's due process rights, and erred in denying the parent's request for an independent neuropsychological evaluation.  Finally, the parent argues that the late filing of the request for review should be excused for good cause shown.

In an answer, the district argues that the parent's appeal should be dismissed as untimely.[3]

V. Discussion – Timeliness of Appeal

As a threshold matter, it must be determined whether or not 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 May 30, 2025; thus, the parent had until July 9, 2025 to personally serve the district with a verified request for review (see May 30, 2025 IHO Decision at p. 10; 8 NYCRR 279.4[a], 279.11[b]).  The parent's attorney served the request for review upon the district on August 25, 2025, approximately 47 days late (see Parent Aug. 27, 2025 Aff. of Service by Email).

The parent's reason set forth in the request for review for the failure to timely initiate the appeal from the IHO's May 30, 2025 decision does not constitute good cause.  In the request for review, the parent asserts that the late filing of her request for review should be excused because the IHO's decision was only served upon the parent's former attorney, who retired from active legal practice in "early June 2025" (Req. for Rev. ¶ 4).  The parent also claimed that a former staff member responsible for internal follow-up had left the law firm on May 14, 2025 (id.).  The parent asserts that she was never personally served with the IHO's decision and that neither the parent's former attorney nor the former employee at the law firm informed the parent or the parent's subsequent attorney about the IHO's decision (id.).  The parent's subsequent attorney became aware of the May 30, 2025 IHO's decision on July 18, 2025 and claims that the request for review was "file promptly" on July 18, 2025, however, the request for review was not served upon the district until August 25, 2025 (Req. for Rev. ¶ 4; see Parent Aug. 27, 2025 Aff. of Service by Email).

Notwithstanding the statement in the request for review indicating that the parent's attorney had not yet retired as of the date the May 30, 2025 IHO decision was issued, 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.  On the other hand, there may be circumstances that are outside a party's control where delay in receipt of an IHO's decision might contribute to lateness in the service of the request for review, such as 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).  However, this case presents neither circumstance.

The parent also argues that she was never personally served with a copy of the IHO's May 30, 2025 decision "as required" (Req. for Rev. ¶ 4).  State regulation provides that the IHO "shall render a decision, and mail a copy of the written, or at the option of the parents, electronic findings of fact and the decision to the parents" (8 NYCRR 200.5[j][5]).  In addition, IHO's are required to distribute decisions to the parties as of the date they are signed (8 NYCRR 200.5[j][5][v]).  Contrary to the parent's contention, there is no requirement in State regulation that a copy of an IHO's decision must be "personally served" upon a party.  Further, the parent has not alleged that she did not receive a copy of the May 30, 2025 IHO decision.

In this instance, the administrative record on appeal includes an email, dated May 30, 2025, reflecting that the IHO sent both parties a copy of the May 30, 2025 decision via email (see Supp. Ex. 5).  According to the May 30, 2025 email, the decision was sent to the parent's attorney who filed the due process complaint notice and appeared at the prehearing conference, another attorney from the same practice, who was described in the request for review as former staff member responsible for internal follow up, and the email was also addressed to the district's attorney (id.; see Tr. pp. 1-15; Parent Ex. A at p. 12).

In light of the evidence, it was not unreasonable for the IHO to send the final decision to two attorneys from the parents' attorney's law firm, one of whom had filed the parent's due process complaint notice and appeared at the prehearing conference (see Tr. pp. 1-5; Parent Ex. A at p. 12;).  The law firm's failure to advise the IHO or OATH that the attorneys to whom the IHO eventually sent the May 30, 2025 decision were either in the process of retiring or no longer employed with the law firm was an oversight that was solely attributable to the attorney, supervising attorney, and/or the law office's practices, not the IHO's case management, and such law office failure does not constitute "an event that the filing party had no control over" (see 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]).

Accordingly, because the parent failed to properly initiate this appeal by effectuating timely service upon the district and I do not find the parent's explanation to constitute good cause for her 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]).

VII. Conclusion

Having found that the parent failed to timely initiate the appeal, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.