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, pursuant to section 8 NYCRR 279.10(d) of the Regulations of the Commissioner of Education, from a decision of an impartial hearing officer (IHO) determining her daughter's pendency placement during a due process proceeding challenging the appropriateness of respondent's (the district's) recommended educational program for the student for the 2025-26 school year and decision to dismiss the parent's due process complaint notice with prejudice.  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. Briefly, the student began attending school at the International Institute for the Brain (iBrain) in the 2019-20 school year and continued their attendance at that school through the 2025-26 extended school year (Tr. pp. 4-5; see Dist. Exs. 6; 13; 14; 15; 17; 23).

A CSE convened on May 14, 2025, and finding that the student remained eligible for special education as a student with a traumatic brain injury, developed an IEP with a projected implementation date of May 19, 2025 (Dist. Ex. 1 at pp. 1). The May 2025 CSE recommended the student attend a "District 75" specialized school in a 12:1+(3:1) special class with adapted physical education, as well as related services of four 60-minute sessions per week of individual occupational therapy (OT), one 60-minute session per week of OT in a group, , five 60-minute sessions per week of individual physical therapy (PT), individual school nurse services as needed, four 60-minute sessions per week of individual speech-language therapy,, and one 60-minute session per week of speech-language therapy in a group (Dist. Exs. 1 at pp. 61-63; 19 at pp. 1-2).[1]  The May 2025 CSE also recommended for the student paraprofessional services for health, safety, feeding, and ambulation and assistive technology services including a touch screen tablet (Dist. Exs. 1 at p. 62;19 at p. 2).  In addition, the CSE recommended one 60-minute session per month of parent counseling and training (Dist. Exs. 1 at p. 61; 19 at p. 2).

A. Due Process Complaint Notice

By due process complaint notice dated June 27, 2025, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2025-26 school year based on various procedural and substantive violations (see Parent Ex. A at pp. 6-10).  As relief, the parent sought an order declaring that the district denied the student a FAPE for the 2025-26 school year, an order finding that iBrain was an appropriate placement for the student, and an order directing the district to pay for full tuition to iBrain, including related services, as well as direct payment for special education transportation and nursing services (id. at pp. 10-11).  The parent also sought an order directing the district to fund an independent neuropsychological evaluation, to reconvene a new CSE meeting to address the parent's requested changes, and an order for the district to pay for additional technology and supportive devices (id.).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 11, 2025 and September 12, 2025, and concluded on September 18, 2025 (Tr. at pp. 24-510).[2]  In a final decision dated October 13, 2025, the IHO initially found that, for purposes of the student's pendency placement, a prior IHO Decision dated February 25, 2025 (February 2025 Decision)  had become final and binding, and was the basis for the student's stay-put services (IHO Decision at p. 7).[3]  The IHO determined that for the purposes of pendency the district was required to pay up to the maximum amount in the February 2025 and ordered payment of up to a maximum of $331,047.80 toward tuition payments for iBrain during the pendency of the proceedings (id. at pp. 8, 38). The IHO went on to find that the student was entitled to those specifically enumerated transportation services in the February 2025 Decision through the district's Office of Pupil Transportation (id. at pp. 8-9). The IHO similarly found that the student was entitled to the 1:1 nursing services detailed in the February 2025 Decision and that the district retained the discretion to determine how to implement the nursing services during the pendency of these proceedings (id. at pp. 9-10).

The IHO then went on to dismiss the parent's due process complaint notice, and held that even if they had not, she would have denied the parent's requested relief on the merits (IHO Decision at pp. 2, 11-38).  The IHO found that the parent's attorney's conduct at the hearing was "willfully obstructive to [the IHO's] ability to conduct a complete and fair hearing," including repeated challenges to the IHO's authority, refusal to produce the parent to testify despite being ordered to do so, refusal to accept service of a subpoena on behalf of the parent, and demanding an expedited timeline for the hearing in an email that was also addressed to the OATH Deputy Commissioner and various New York State government and legal personnel, which demanded the IHO's recusal if that demand was not met, as well as other obstructive conduct (id. at pp. 11-17).  The IHO therefore dismissed the parent's case with prejudice, finding that sanction to be appropriate and necessary to address the parent's attorney's misconduct (id. at pp. 16-17).   

The IHO then found that even if the case was not dismissed, she would have ruled against the parent and denied the parent's requested relief on the merits (IHO Decision at p. 17).  The IHO determined that the district failed to meet its burden to show that it offered the student a FAPE, primarily based on the district's failure to offer the student 1:1 nursing services at the time the parent had to make a placement decision (id. at pp. 20-21).[4]  The IHO further determined that the parent failed to meet her burden to demonstrate that the student's unilateral placement was appropriate (id. at pp. 26-32).  Next, after reviewing a number of equitable considerations, the IHO concluded that equitable considerations weighed against granting the parent's requested relief (id. at pp. 33-36).  As a result, the IHO found that she would have ruled against the parent on the merits of the case and would have denied their request for relief (id. at p. 36). The IHO also found that the parent's request for an independent neuropsychological evaluation would have been denied because the evidence presented at the hearing disproved the parent's arguments regarding the alleged inadequacy of the evaluative information relied on and considered by the CSE (id. at pp. 36-37). Lastly, the IHO determined that the parent's request for a number of additional specialized devices would also have been denied on the merits (id. at pp. 37-38).

Based on the foregoing, the IHO ordered the district to comply with its pendency obligations for the duration of the proceedings by funding the student's tuition at their unilateral placement up to a maximum amount of $331,047.80,  and provide for transportation to and from school with a number of special accommodations, and 1:1 nursing services during that transportation and during school hours (IHO Decision at p. 38).  The IHO dismissed the parent's due process complaint with prejudice, including all remaining claims and requests for relief (id.).

IV. Events Post-Dating the Impartial Hearing Officer Decision

The parent, through their attorney, previously filed a request for review dated November 17, 2025, with the Office of State Review ("November 2025 request for review"). The Office of State Review opened an appeal designated Application of a Student with a Disability, Appeal No. 25-736.

In a letter from the Office of State Review, dated December 1, 2025, the parent's attorney and their law firm was notified that the parent's filing was rejected because it failed to comply with the requirements of Part 279. The parent did not file a verified request for review as required by State regulation (8 NYCRR 279.3; 279.7[b]). The letter also informed the parent's attorney that although the November 2025 request for review was dated November 17, 2025, and its accompanying memorandum of law was dated November 21, 2025, the proof of service that was filled with that appeal reflected that the district had been served on October 17, 2025, and did not reflect that a memorandum of law was served at all, and furthermore that the submission on appeal lacked a proof of service showing that a notice of intention to seek review was served on the district.  That letter therefore stated that the November 2025 request for review was also rejected for lack of valid proof of service.  That letter went on to remind the parent's counsel's law firm that they had been previously warned about incomplete filings and noncompliance with Part 279 in other cases submitted to the Office of State Review, and also previously warned that because of that prior noncompliance it would be unlikely they would be granted leave to amend in future matters.  That letter stated that based on those prior warnings, and the significant number and type of defects present in that appeal, the State Review Officer had declined to grant them leave to amend their request for review sua sponte, that Appeal No. 25-736 was administratively closed and that no further action would be taken.

V. Second Appeal for State-Level Review

The parent, through their attorney, thereafter, served the district with a second appeal and on December 16, 2025 filed a second request for review dated December 15, 2025 ("December 2025 request for review").  The December 2025 request for review was also accompanied by an affirmation of service by email ("Parent Aff. of Service"), stating that the parent's attorney electronically served the district with a copy of the December 2025 request for review on December 16, 2025.

On appeal, the parent seeks to have the IHO's October 13, 2025, dismissal reversed.  The parent asks to have the IHO's determination that the district denied the student a FAPE for the 2025-26 school year to be upheld, but for the IHO's determinations that the parent failed to meet their burden to show that the student's unilateral placement was appropriate and that equitable considerations weighed against the parent to both be reversed.  The parent argues that the IHO erred in denying the requested independent evaluation and erred in capping the student's tuition. The parent therefore requests full reimbursement for the student's tuition and related services at iBrain for the 2025-26 school year, including nursing services and special transportation services. The December 2025 request for review does not include any argument detailing why good cause exists to excuse untimely filing and service of that request for review.

By letter dated December 16, 2025, the district asked that the State Review Officer affirm its prior ruling that Application of a Student with a Disability, Appeal No. 25-736 was administratively closed reasons set forth in the Office of State Review's December 1, 2025 letter, and stated that they declined to respond to the parent's pleading in this proceeding or take further action.  Accordingly, the district did not file an answer in this proceeding.

The parent's attorney responded in a letter also dated December 16, 2025, ("Dec. 2025 Parent Att'y Letter") stating that the delay in "refiling" the December 2025 request for review was the result of a "clerical oversight in counsel's office" (id.). That letter does not dispute the basis for the November 2025 request for review's being rejected and the matter administratively closed (id.).  Rather, the parent's attorney acknowledged that rejection as being based on "verification and date discrepancies" characterized their filing defects as "procedural in nature" (id.). Parent's counsel argued that those defects did not reflect a failure to timely pursue appellant review and asserted that parent's counsel moved to refile a corrected filing promptly upon discovery (id.). Parent's counsel further argued that the district was not prejudiced by this delay, because they were properly placed on notice of the original November 2025 request for review (id.).  In that letter, parent's counsel argued that they timely served the district, and that a "short delay in filing with the [Office of State Review] caused by an inadvertent technical error, and the absence of any prejudice to the [district]" should constitute good cause to excuse an untimely filing (id.).

VI. 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 13, 2025; thus, the parent would have had until November 22, 2025 to personally serve the district with a verified request for review, but because that date fell on a Saturday, service could have been made on the following Monday, November 24, 2025 (see IHO Decision at p. 38; 8 NYCRR 279.4[a], 279.11[b]).  The parent's attorney served the 2025 request for review upon the district by email on December 16, 2025, 24 days late after the initial deadline (see Parent Aff. of Service).

Furthermore, no good cause for the untimely appeal was set forth in the request for review as required by State regulation (8 NYCRR 279.13).  Instead, in the December 16, 2025 letter submitted by the parent's counsel, they alleged that their delay in filing and serving the December 2025 request for review was due to purported clerical oversight and inadvertent technical errors, which they argue should constitute good cause to excuse this delay, and that the district was not prejudiced because they were timely served in November 2025 (Dec. 2025 Parent Att'y Letter).  However, those explanations were not included in the December 2025 request for review and therefore cannot provide a basis to find that good cause exists to excuse the parent's failure to timely serve the December 2025 request for review (see 8 NYCRR 279.13).

Even had the reasons for the late filing been set forth in the request for review, the attorney's delay in refiling the 2025 request for review is an oversight that is 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]).  In her December 16, 2025 letter, the parent's attorney describes their delay in filing the December 2025 request for review as being the result of a "clerical oversight in counsel's office," and offers no specific explanation or excuse for their untimely filing and service that was not directly within their control (Dec. 2025 Parent Att'y Letter). 

The parties' December 16, 2025, letters are not substitutes for the formal pleading requirements in the practice regulations (8 NYCRR 279.6[a]; 279.13). Furthermore, even if the letters were permissible as verified pleadings, the parent's attorney does not offer any explanation that would excuse the procedural shortcomings in failing to serve completed appeal papers upon the district on or before Monday November 24, 2025, or explain why that pleading had not yet been verified by the parent or why the affidavits of service were either missing altogether with respect the notice of intention to seek review or facially defective with respect to the November 2025 request for review.

The parent's attorney argued that compliance should be excused because the district would suffer "no prejudice" from acceptance of the December 2025 request for review (Dec. 2025 Parent Att'y Letter).  However, lack of prejudice to the district does not, by itself, provide good cause for why service of the December 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"]).  

Examination of the December 2025 request for review and accompanying documents shows that no good cause has been asserted or found to excuse the untimely service of the verified request for review on the school district (8 NYCRR 279.13).  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 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]).

VII. Conclusion

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

THE APPEAL IS DISMISSED.