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.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request to be reimbursed for their daughter's tuition at the International Academy for the Brain (iBrain) for the 2024-25 school year.  Respondent (the district) cross-appeals from the IHO's decision to the extent it granted the parent's request for district funding of the full costs of the student's private nursing services for the 2024-25 school year.  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[a]).  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, a CSE convened on April 11, 2024, and, finding that the student remained eligible for special education as a student with a traumatic brain injury, recommended 12-month programming consisting of the following: a 12:1+(3:1) special class placement, five 60-minute sessions per week of individual occupational therapy (OT), five 60-minute sessions per week of individual physical therapy (PT), five 60-minute sessions per week of individual speech-language therapy, three 60-minute sessions per week of vision education services, individual school nurse services (as needed), and one 60-minute session per month of parent counseling and training services (see Parent D at pp. 1, 40-42).[1]  The April 2024 CSE also recommended the services of a full-time paraprofessional (ambulation, safety, feeding), assistive technology devices and services (switches, two 60-minute sessions per week of assistive technology services), and special transportation (individual paraprofessional, lift bus, wheelchair accessible) (id. at pp. 41, 46).

On June 15, 2024, the parents electronically executed a "School Transportation Annual Service Agreement" with "Sisters Travel and Transportation Services, LLC" (Sisters Travel) to provide the student with round-trip transportation between her home and iBrain during the 2024-25 school year beginning on July 2, 2024 and concluding on June 27, 2025 (Parent Ex. A-F at pp. 1, 7).[2]  Thereafter, on June 18, 2024, the parents electronically executed an "Annual Enrollment Contract" with iBrain for the student's attendance during the 2024-25 school year from July 2, 2024 through June 27, 2025 (Parent Ex. A-E at pp. 1, 6-7).  On June 18, 2024, the parents also electronically executed a "Nursing Service Agreement" with "B&H Health Care Services, Inc.—DBA Park Avenue Home Care" (B&H Health Care) to provide the student with an individual transportation nurse and an individual private duty nurse during the school day for the 2024-25 school year from July 2, 2024 through June 27, 2025 (Parent Ex. A-H at pp. 1-2, 7-8).[3]

A. Due Process Complaint Notice

By due process complaint notice dated July 2, 2024, the parents alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2024-25 school year based on various procedural and substantive violations (see Parent Ex. A at pp. 1, 7-10).  As relief, the parents sought, among other things, an order directing the district to fund the costs of the student's tuition at iBrain, as well as the costs of the student's transportation and nursing services during the 2024-25 school year (id. at pp. 11-12).

B. Impartial Hearing Officer Decision

On August 1, 2024, the parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. p. 1).[4]  The impartial hearing concluded on November 25, 2024, after seven days of proceedings (see Tr. pp. 110-75).[5]  In a decision dated March 3, 2025, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year, iBrain was an appropriate unilateral placement, and the individual nursing services and transportation services were appropriate to meet the student's needs (see IHO Decision at pp. 4-16, 21).  However, with regard to equitable considerations, the IHO found the parent's testimony was not credible (id. at p. 16).  In addition, the IHO determined that the parent did not cooperate with the district in the development of the student's IEP and did not attend the resolution session (id. at p. 17).  With regard to the parent's contractual and financial obligation to the unilateral placement, nursing services, and transportation services, the IHO found the parent's testimony was unreliable and reflected that the parent had "no intention of being financially responsible for the contracts that were singed, even if the contracts [we]re binding" (id. at pp. 17-18).  Finally, the IHO determined that the costs of the student's tuition, nursing services, and transportation services—totaling $873,796.00 for the 2024-25 school year—were "clearly excessive" (id. at p. 18).  For these reasons, the IHO concluded that equitable considerations did not weigh in favor of the parents' requested relief and decreased the costs of the student's tuition and transportation services by 50 percent, but fully awarded the costs of the student's nursing services (id. at pp. 18-19).

Turning to the parents' request for independent educational evaluations (IEEs), the IHO determined that, based on the evidence in the hearing record, the district was required to fund the following assessments: an educational evaluation, a neuropsychological evaluation, and a transitional evaluation (see IHO Decision at pp. 19-20).  The IHO noted that the parents were to select the evaluators and that the district must fund the IEEs at "market rate" (id. at p. 20).

IV. Appeal for State-Level Review

The parents appeal, alleging that the IHO erred by finding that equitable considerations did not weigh in favor of the parents' requested relief.  Additionally, the parents assert that the IHO failed to address all allegations in the due process complaint notice and erred by making adverse findings against the parents.  As a final point, the parents argue that they should not be penalized for the "minimal delay" in filing the request for review appealing the IHO's March 3, 2025 decision and allege that there was good cause for the delay.

In an answer and cross-appeal, the district argues to dismiss the parents' request for review for failing to timely initiate the appeal.  The district generally argues to uphold the IHO's decision with regard to equitable considerations, but asserts that the IHO erred by not reducing the reimbursement awarded to the parents for the costs of the student's nursing services.  As relief, the district seeks dismissal of the parents' reqeust for review and reduction of the awarded reimbursement for the costs of the student's nursing services by 50 percent.[6]

V. Discussion—Timeliness of Appeal

As a threshold matter, it must be determined whether or not the parents' 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 parents failed to initiate the appeal in accordance with the timelines prescribed in Part 279 of the State regulations.  The IHO's decision is dated March 3, 2025; thus, the parents had until April 14, 2025 to personally serve the district with a verified request for review (see IHO Decision at p. 21; 8 NYCRR 279.4[a], 279.11[b]).  The parents' attorney served the request for review upon the district by email on May 30, 2025, approximately 46 days late (see Parent June 2, 2025 Affirm. of Service by Email).

The parents' reason set forth in the request for review for the failure to timely initiate the appeal from the IHO's decision does not constitute good cause.  In the request for review, the parents assert that, as reflected in a "proposed Parent Exhibit, the Notice of Appearance attached," the IHO had been instructed to send "any and all notifications in regard to the instant matter . . . to the attached email addresses" (Req. for Rev. ¶ 32).  According to the parents, the IHO sent the decision to a "former employee's email," which was out of their control and which caused the "delay in filing" (id.).[7]  The parents also assert that, "[o]nce [their] counsel was sent the email pertaining to the [IHO's decision] from [the district], the Notice of Intent to Seek Review was filed immediately" (id.).  Notably, the parents do not provide any information regarding when they or their attorney received a copy of the IHO's decision from the district nor do the parents or their attorney provide any proof that they received the IHO's decision from the district to support this assertion (see generally Req. for Rev.).

Regardless, 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.

In this instance, the administrative record on appeal includes an email, dated March 3, 2025, reflecting that the IHO sent both parties a copy of the March 3, 2025 decision via email (see Supp. Ex. 8).  According to the March 3, 2025 email, the decision was sent to one attorney from the parents' attorney's law firm and the district's attorney (see id.).  The attorney from the parents' law firm to whom the decision was addressed was the same attorney who appeared at five of the seven impartial hearing dates, who signed the parents' due process complaint notice, who signed and filed a responsive paper to the district's motion to dismiss, and who—as late as January 2025—signed and filed the parents' post-hearing brief for the IHO's consideration in this case (see Tr. pp. 1, 134, 318; Nov. 19, 2024 Tr. p. 2; Nov. 25, 2024 Tr. p. 111; Parent Ex. A at p. 13; Parent Response to Dist. Mot. to Dismiss at p. 21; Parent Post-Hr'g Br. at p. 24).

To support their argument that the IHO's failed to send the March 3, 2025 decision to the "'counsel of record,'" the parents point to additional documentary evidence submitted with the request for review, i.e., a "Proposed Exhibit, the Notice of Appearance attached"; however, the parents submitted three documents and do not reference any specific exhibit or page therein to identify the evidence to which they refer (Req. for Rev. ¶ 32).  Upon review, the only document that appears to be minimally relevant to the parents' argument is a letter, dated July 12, 2024, found as the last page of proposed exhibit 3, which includes 152 pages total (Req. for Rev. Ex. 3 at p. 152).  The letter, which was addressed to OATH and which indicated that one attorney, as well as three additional attorneys with the law firm, represented the parents in this matter (id.).  The letter included email addresses for all four attorneys identified with the law firm that represented the parents, and noted that "any future correspondence about this case" should be sent via email to one particular attorney with a copy sent to what appears to be a general email address for the law firm (id.).  To be clear, the letter specifically identified the attorney from the law firm that represented the parents at the impartial hearing on five out of seven days of proceedings, as well as with regard to several filings related to the impartial hearing and to whom the IHO emailed the March 3, 2025 decision (id.).

In light of the evidence, it was not unreasonable for the IHO to send the final decision to the one attorney from the parents' attorney's law firm who appeared for a majority of the impartial hearing; who signed the parents' July 2, 2024 due process complaint notice; and who prepared all of the parents' motion papers and briefs (see Tr. pp. 1, 134, 318; Nov. 19, 2024 Tr. p. 2; Nov. 25, 2024 Tr. p. 111; Parent Ex. A at p. 13; Parent Response to Dist. Mot. to Dismiss at p. 21; Parent Post-Hr'g Br. at p. 24).  The law firm's failure to advise the IHO or OATH that the specific attorney to whom the IHO eventually sent the March 3, 2025 decision was no longer employed with the law firm is an oversight that is 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 parents 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 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]).

Finally, with respect to the district's cross-appeal, a cross-appeal is considered proper 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 properly commenced.  In this matter, the request for review was not properly initiated and, therefore, there is no basis to consider the cross-appeal (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 is also dismissed.

VI. Conclusion

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

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.