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 full costs of her daughter's special transportation and nursing services at the International Academy for the Brain (iBrain) for the 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

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, found the student eligible for special education and related services as a student with a traumatic brain injury, and recommended a 12-month program at a district specialized school consisting of a 6:1+1 special class with adapted physical education; related services of occupational therapy, physical therapy, school nurse services, speech-language therapy, and parent counseling and training; the support of assistive technology (service and device) and an individual health paraprofessional; and special transportation (see Dist. Ex. 1).

The parent, in a letter dated June 14, 2024, rejected the recommendations of the April 2024 CSE and requested independent education evaluations (IEEs) at public expense (see Parent Ex. A-A).[1]  The parent further notified the district of her intent to unilaterally place the student at iBrain for the 2024-25 extended school year and seek public funding (id. at pp. 1-2).

In a June 14, 2024 school location letter, the district identified the public school site at which the student's program would be provided (see Dist. Ex. 3).

On June 19, 2024 the parent signed an iBrain enrollment contract for the 2024-25 ESY  (see Parent Ex. A-E).  The parent signed both a transportation agreement with Sisters Travel and Transportation Services, LLC, and a nursing services agreement, with B&H Healthcare Services, Inc., on June 20, 2024 (see Parent Exs. A-F; A-G).

A. Due Process Complaint Notice

In a due process complaint notice dated July 2, 2024, the parent alleged that the district denied 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, 5-7).  In particular, the parent argued that the district failed to recommend an appropriate assigned public school site, failed to evaluate the student in all areas of suspected disability, failed to recommend the appropriate related services, denied the parent meaningful participation in the CSE process, and predetermined its recommendations (id. at pp. 5-7).  The parent also alleged that iBrain was an appropriate unilateral placement and that equitable considerations favored her requested relief (id. at pp. 7).  For relief, the parent requested an order directing the district to fund the costs of the student's tuition at iBrain for the 12-month 2024-25 school year inclusive of related services and a 1:1 paraprofessional, as well the costs of special education transportation services and 1:1 nursing services (id. at p. 8).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on August 20, 2024 and concluded on October 17, 2024, after four days of proceedings (Tr. pp. 1-168; Oct. 17, 2024 Tr. pp. 1-68).[2]  In a decision dated February 25, 2025, the IHO found that the district did not commit a procedural violation in that the CSE had sufficient evaluative information and did not predetermine to omit music therapy from its recommendations (IHO Decision at pp. 10-15).  However, the IHO held that the district failed to offer a cogent and responsive explanation as to why the CSE did not recommend full-time 1:1 nursing services for the student (id. at pp. 16-19).  The IHO also determined that the CSE's recommendations for special transportation services were inappropriate (id. at pp. 19-21).  Therefore, the IHO found that the district denied the student a FAPE for the 2024-25 school year (id. at p. 19, 21).

Next, the IHO found that iBrain was an appropriate unilateral placement (IHO Decision at pp. 21-26).  Regarding equitable considerations, the IHO held that the parent cooperated with the CSE and provided the district with timely notice of her intent to unilaterally place the student at iBrain (id. at pp. 26-30).  The IHO concluded that the parent was entitled to direct funding for the full cost of the student's tuition at iBrain (id. at pp. 31-32, 36).[3]  However, the IHO found that the parent was only entitled to funding for the services actually provided to the student under the nursing and transportation agreements upon submission of affidavits from the respective agencies (id. at pp. 33, 36-37).  Turning to the request for funding for independent neuropsychological evaluation, the IHO found that the parent was entitled to the evaluation at public expense (id. at pp. 33-36).

IV. Appeal for State-Level Review

The parent appeals.  Generally, the parent argues that the IHO erred by not awarding the full cost of the special transportation and nursing contracts.  The parent contends the IHO should have made the award pursuant to the terms of the contracts and asserts that the IHO does not have the authority to alter the terms of the contract.  Further, the parent contends that the district did not present any evidence that the terms of the agreements were unreasonable or excessive.

The parent also acknowledges that her request for review is untimely.  The parent asserts that she should not be penalized to the "minimal delay" and indicates that "a proposed Parent Exhibit, the Notice of Appearance attached" to the request for review demonstrates that the IHO's decision was sent to a "former employee[]" of the parent's law firm and that, therefore, the parent's law firm did not receive the decision when it was issued.[4]

In an answer, the district asserts that the request for review is untimely and requests that the appeal be dismissed.[5]  Additionally, the district argues that the IHO properly reduced the award for the transportation and nursing services to funding only for the costs of services actually delivered to the student.

V. Discussion — Timeliness of Request for Review

As a threshold matter, it must be determined whether or not the parent's appeal should be dismissed for failing 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 IHO decision was dated February 25, 2025, thus the parent had until April 7, 2025, to personally serve the district with a verified request for review (see IHO Decision; 8 NYCRR 279.4[a]; 279.11[b]).[6]  However, the parent's attorney served the request for review upon the district by email on May 29, 2025 (Parent Affirm. of Serv. By Email), which was 52 days late.[7]

The parent's request for review acknowledges that it was served untimely.  However, the parent contends that the IHO decision was sent to a "former employee's email," that therefore parent's counsel did not receive the decision from the IHO, and that this was out of parent's control and caused the "delay in filing" (Req. for Rev. ¶ 34).[8]  The parent also asserts that, "[o]nce [her] 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.).  The parent does not provide any information regarding when she or her attorney purportedly received a copy of the IHO's decision from the district (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.

Here, the attorney who appears on the parent's behalf in this appeal (Mr. Albert) submitted a letter to OATH, notifying OATH that he would be representing the parent along with three other attorneys from the firm (SRO Ex. C at p. 2).  The letter requested that "any future correspondence about this case" be sent to Mr. Albert and a generic email address for the firm (SRO Ex. C at p. 3).[9]  The hearing transcript indicates that two of the four attorneys listed on the notice of appearance represented the student at the impartial hearing (see Tr. pp. 26, 33-34, 112, 114; Oct. 17, 2024 Tr. pp. 2-3).[10]  On February 25, 2025, the IHO transmitted the decision in this matter via email to two attorneys at the parent's law firm, and a district employee (SRO Ex. D).  These two attorneys represented the parent at the hearing, corresponded with the IHO throughout the hearing, and were listed on the notice of appearance (see Tr. pp. 26, 33-34, 112, 114; Oct. 17, 2024 Tr. pp. 2-3; SRO Ex. C at p. 2; IHO Exs. VI, VIII, IX, XII, XIII).

In light of the evidence, it was not unreasonable for the IHO to send the final decision to the two attorneys from the parent's law firm who were both listed on the notice of appearance and who appeared at the impartial hearing (see Tr. pp. 26, 33-34, 112, 114; Oct. 17, 2024 Tr. pp. 2-3; SRO Ex. C at p. 2).  The law firm's failure to advise the IHO or OATH that a specific attorney to whom the IHO timely sent the February 25, 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 Benites v. New York Dep't of Corr. & Cmty. Supervision, 2023 WL 1966181, at *3 [S.D.N.Y. Feb. 13, 2023] ["Law office failure does not constitute good cause, either – and is certainly not a circumstance beyond counsel's control, which is the only basis for a showing of good cause."]; Baldwin v. United States, 2016 WL 3085425, at *2 [W.D.N.Y. June 2, 2016] ["Law office failure rarely constitutes an excusable neglect . . . . Preoccupied and overworked staff does not establish excusable neglect, and neither does inadvertence.']; Cutrone v. BJ's Wholesale Club, Inc., 2023 WL 8792674 [E.D.N.Y 2023]; 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]).

Further, in the request for review, the parent alleges that the IHO's decision was not received because it was sent to "a former employee's email" but does not state which attorney was no longer with the law firm, and ignores the fact that the IHO sent the decision to two attorneys from the firm.  Under the circumstances, the parent has failed to establish good cause for the untimely filing of the request for review.

Accordingly, because the parent failed to properly initiate this appeal by effectuating timely service upon the district and there was no good cause asserted for its untimeliness in the request for review, 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]).

VI. Conclusion

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

THE APPEAL IS DISMISSED.