25-729

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), which denied her request for respondent (the district) to fully fund the costs of her daughter's tuition and related services at the International Academy for the Brain (iBrain) for the 12-month, 2025-26 school year on the basis of equitable considerations. The district cross-appeals from those parts of the IHO's decision which found that it failed to offer an appropriate educational program to the student for the 12month, 2025-26 school year and found that iBrain was an appropriate unilateral placement. The appeal must be dismissed. The cross-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
Given the disposition of this matter on procedural grounds, a detailed recitation of the facts relating to the student's educational history is not necessary.

In a due process complaint notice dated June 27, 2025, the parent alleged that the district failed to develop an appropriate IEP for the student for the 12-month 2025-26 school year, failed to recommend appropriate related services in a March 2025 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 2025-26 school year (Parent Ex. A at pp. 6-9). 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 2025-26 school year including tuition, related services, 1:1 paraprofessional services, and special transportation (id. at pp. 10-11). The parent also included allegations in the due process complaint notice related to the 2024-2025 school year and requested direct funding for the tuition costs of iBrain for the 2024-25 school year (Parent Ex. A at pp. 4-5, 7, 10).

Following a prehearing conference on August 7, 2025, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 8, 2025, and concluded on September 11, 2025, after two days of proceedings (Tr. pp. 1-276). In an interim decision dated August 29, 2025, the IHO determined that the parent's claims related to the 2024-25 school year were barred for several reasons, among them the doctrines of res judicata and collateral estoppel, and dismissed those claims with prejudice (IHO Interim Decision at pp. 3-4).

In a final decision dated October 9, 2025, the IHO determined that the district failed to offer the student a FAPE for the 2025-26 school year (IHO Decision at pp. 4-5).¹ The IHO further found that iBrain was an appropriate unilateral placement, however the IHO also determined that equitable considerations did not warrant an award of full funding for the cost of the student's attendance at iBrain, because, among other things, the parent did not cooperate with the hearing process and refused to comply with directives of the IHO (id. at pp. 5-8). The IHO also determined that the parent was not entitled to funding for the student's transportation costs (id. at pp. 8-9). Further, the IHO denied the parent's request for an independent educational evaluation (IEE) (id. at pp. 9-10).

IV. Appeal for State-Level Review
The parent appeals and argues that the IHO erred in denying funding for the costs of the student's attendance at iBrain based on equitable considerations and further erred in denying the parent's request for an IEE. The parent also alleges that the IHO erred by applying a negative inference based on the parent's failure to appear as ordered to testify at the impartial hearing. Lastly, the parent contends that the IHO erred in failing to enforce pendency. As relief, the parent requests reversal of the IHO's findings and an award of funding for the costs of the student's attendance at iBrain and for an IEE.

In an answer and cross-appeal, the district argues that the IHO erred in finding that it failed to offer the student a FAPE for the 12-month, 2025-26 school year, and erred in finding that iBrain was an appropriate unilateral placement. The district requests that all of the parent's requested relief be denied.

In an answer to the cross-appeal, the parent argues that the IHO correctly found that the district failed to offer the student a FAPE and correctly found that iBrain was an appropriate unilateral placement and further reasserts the claims set forth in the request for review.

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 October 9, 2025; thus, the parent had until November 18, 2025 to personally serve the district with a verified request for review (8 NYCRR 279.4[a], 279.11[b]). On November 20, 2025 the parent filed the following documents with the Office of State Review: a notice of intention to seek review dated October 23, 2025; an affirmation of service by email dated November 20, 2025 indicating that the notice of intention to seek review was served on the district on October 23, 2025, a request for review dated November 18, 2025; an affirmation of verification dated November 18, 2025; and an affirmation of service by email dated November 20, 2025, indicating that the request for review was served on November 20, 2025.²

The parent's request for review did not acknowledge that the request for review was not timely served and did not specify any cause for the late filing as required by State regulation which specifically states that the reason for a late filing "shall be set forth in the request for review" (8 NYCRR 279.13). As the parent has failed to assert good cause—or any reason whatsoever—in her request for review for the failure to timely initiate the appeal from the IHO's decision (see 8 NYCRR 279.13), there is no basis on which to 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"]).

Based on the foregoing, 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; accordingly, 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. 23-294 [dismissing a parent's appeal for failure to effectuate timely service when the appeal papers were sent by email that was received by the district seven seconds past the deadline for timely service]; Application of a Student with a Disability, Appeal No. 18-046 [dismissing request for review for being served one day late]).

Lastly, to the extent the district's answer included a cross-appeal, a cross-appeal is considered timely 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 timely commenced. In this matter, the request for review was untimely and, therefore, the cross-appeal is also untimely and there is no basis to consider it (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 must also be dismissed.

VI. Conclusion
Having found that the parent failed to timely initiate the appeal pursuant to State regulations and no cause as a matter within my discretion to accept a late request for review, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.