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 that respondent (the district) fund the costs of her son's tuition at the International Academy for the Brain (iBrain) 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

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 July 17, 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 December 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. 4-9).  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, special transportation, specific assistive technology devices, independent educational evaluations (IEEs), and extended eligibility beyond 21 years of age for prior denials of FAPE (id. at pp. 10-11).

Following a prehearing conference on August 18, 2025, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 17, 2025, and concluded on October 8, 2025, after three days of proceedings (Tr. pp. 1-185). 

In a final decision dated October 30, 2025, the IHO determined that the district met its burden to demonstrate that it offered the student a FAPE for the 2025-26 school year (IHO Decision at pp. 24-26).  The IHO further found that iBrain was not an appropriate unilateral placement for the student, citing the hearing record's "scant information about the actual delivery of [the] services" the student was supposed to receive (id. at pp. 27-28).  Likewise, the IHO determined that the parent was not entitled to funding for the student's private transportation services (id. at pp. 28-29).  Further, the IHO denied the parent's request for an IEE at district expense as the parent failed to cite a specific district evaluation with which she disagreed (id. at p. 29).  Finally, the IHO denied the parent's request for extended eligibility to remedy purported denials of a FAPE to the student in prior school years (id. at p. 31).  The IHO denied the parent's request for direct funding of tuition at iBrain for the 12-month 2025-26 school year and for funding for transportation costs, and dismissed the parent's due process complaint notice with prejudice (id.).

The parent, through her attorney, initially filed a request for review dated December 9, 2025, with the Office of State Review on December 10, 2025 (see Dec. 9, 2025 Req. for Rev.).  The Office of State Review received the December 9, 2025 request for review and opened an appeal designated Application of a Student with a Disability, Appeal No. 25-786.  In a December 12, 2025 letter from the SRO in that matter, the parent's attorney was informed that the parent's request for review was rejected for failing to comply with the regulations governing practice before the Office of State Review (see generally 8 NYCRR Part 279).  Specifically, the SRO described the defects with the affirmation of verification of the parent's request for review, and the defects with the accompanying affirmation of service of the parent's request for review, which the SRO deemed invalid.  The SRO in that matter further stated that the parent's attorney's law firm had been previously warned that leave to amend would not be granted to correct defects if the law firm continued to submit incomplete filings to the Office of State Review and persisted in its noncompliance with the practice regulations.  With regard to Application of a Student with a Disability, Appeal No. 25-786, the SRO in that matter noted the significant number and type of defects present in the appeal and, therefore, declined to exercise his discretion to grant the parent's attorney leave to amend the request for review, and administratively closed the appeal.[1]

IV. Subsequent Appeal for State-Level Review

The parent, through her attorney, filed a notice of request for review and request for review dated December 12, 2025.^[2]  The parent also filed an affirmation of verification affirmed under penalty of perjury on December 12, 2025, along with an "audit trail" indicating that the parent electronically signed the affirmation of verification on December 12, 2025.  The parent also filed a memorandum of law dated December 12, 2025, in support of the request for review.  Accompanying the parent's filings were a cover letter dated December 12, 2025, and two proposed exhibits.  The parent's December 12, 2025 cover letter describes the events preceding the December 12 filing and purports to offer good cause for the parent's delay in serving her present appeal.  The parent's documents were received by the Office of State Review on December 15, 2025.[3]

With regard to the substance of the appeal, the parent argues that the IHO erred in finding that the district offered the student a FAPE when it declined to recommend music therapy, an extended school day, and specific assistive technology devices.  Further, the parent 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.  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 including funding for nursing and transportation services.

The district appeared in this matter by letter dated December 16, 2025, acknowledging service of the parent's December 12, 2025 request for review.[4]  However, given the prior SRO's "clear directive" in his December 12, 2025 letter, the district advised that it would not interpose a responsive pleading to the parent's December 12, 2025 request for review.

V. Discussion

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]).

Here, the parent failed to initiate the instant appeal in accordance with the timelines prescribed in Part 279 of the State regulations.  The IHO's decision is dated October 30, 2025; thus, the parent had until December 9, 2025 to personally serve the district with a verified request for review (see IHO Decision at p. 31; 8 NYCRR 279.4[a], 279.11[b]).  While the parent did not file proof of service with the December 12, 2025 request for review as required by State regulation (8 NYCRR 279.4[e]), according to the district's December 12, 2025 correspondence, the parent's attorney served the request for review upon the district on December 12, 2025, approximately three days late.

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] [finding that "attorney error or computer difficulties do not comprise good cause"]).

As described above, the parent's December 12, 2025, request for review was accompanied by a cover letter dated December 12, 2025.  In the letter, the parent's attorney acknowledged that the parent's request for review—an appeal from an October 30, 2025 IHO's decision—was required to be served on the district no later than December 9, 2025.  The parent's attorney asserted that the December 9, 2025 request for review was timely served on the district on December 9, 2025 and subsequently filed with the Office of State Review on December 10, 2025.  Next, the parent's attorney recounted that the December 9, 2025 request for review was rejected "due to verification and date discrepancies" and that, therefore, the parent "intend[ed] to refile the [r]equest for [r]eview with the OSR as of December 12, 2025" and "request[ed] that the OSR consider that the brief delay in filing in the instant Appeal was the result of a clerical oversight in counsel's office, which was promptly corrected upon discovery."  The letter also indicated that "[t]he [district] ha[d] suffered no prejudice, as it has been in possession of the [request for review] since timely service and has been fully aware of the issues raised therein" and had "likewise been served with, and is on notice of, the present refiling."

The parent's request for review did not specify any cause for the late service 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).  Even had the reasons set forth in the parent's attorney's December 12, 2025 cover letter been set forth in the request for review, the defects in the original December 9, 2025 request for review are oversights that are solely attributable to the attorney and/or the law office's practices, 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]).

The parent's attorney characterizes the defects in the December 9, 2025 request for review as "clerical oversight[s]."  As a general matter, the failure to comply with the practice requirements of Part 279 of the State regulations may either result in the rejection of the submitted documents or the dismissal of a request for review by an SRO, depending on the circumstances of each case (8 NYCRR 279.8[a]-[c]; 279.13; see T.W., 891 F. Supp. 2d at 440-41 [upholding dismissal of a petition for review that was untimely and exceeded page limitations]).  However, "judgments rendered solely on the basis of easily corrected procedural errors or 'mere technicalities,' are generally disfavored" (J.E. v. Chappaqua Cent. Sch. Dist., 2015 WL 4934535, at *4-*6 [S.D.N.Y. Aug. 17, 2015], quoting Foman v. Davis, 371 U.S. 178 [1962]).  The sentiments underlying the decision in J.E. are why the parent's counsel's law firm had been granted leave to amend and cure defects in filings in previous appeals, in the interest of preserving their clients' right to file appeals in compliance with the practice regulations.  Yet, the repeated failures of the law firm to comply with Part 279 of the regulations makes this process unwieldly and it is not sustainable.  Even so, the prior SRO's act of administratively closing the prior appeal without a written decision also preserved the possibility that the parent might at some later point in time attempt to file a late request for review with a viable assertion of good cause for the delay.[5]  Had the parent's appeal been dismissed in a final decision in Application of a Student with a Disability, Appeal No. 25-786, due to noncompliance with the practice regulations, I would have been powerless as an SRO to undo that determination and allow another appeal to proceed.  This is because an SRO is precluded from reopening or reconsidering a final determination.  As explained by the United States Department of Education, "[o]nce a final decision has been issued, no motion for reconsideration is permissible" (Letter to Weiner, 57 IDELR 79 [OSEP 2010]; see C.C., Jr. v. Beaumont Indep. Sch. Dist., 2015 WL 13648561, at *10-*11 [E.D. Tex. Mar. 23, 2015]).  In fact, the parent in this matter has availed herself of the opportunity to file a late appeal; however, examination of the December 12, 2025, request for review and accompanying documents shows that no good cause has been asserted or found to excuse the untimely service of the request for review on the school district (8 NYCRR 279.13).

As a final matter, in her letter, the parent's attorney asserts that, since the district was aware of the content of the December 9, 2025 request for review, the district would suffer "no prejudice" from acceptance of the December 12, 2025 request for review .  However, lack of prejudice to the district is not a reason why service of the December 12, 2025 request for review was not made on time (see B.C. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 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, because the parent failed to properly initiate this appeal by effectuating timely service upon the district and I do not find the parents' attorney's explanation to constitute good cause for its 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]; 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"]).

VI. Conclusion

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

THE APPEAL IS DISMISSED.