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 that respondent (the district) fund the costs of their son's tuition at the Stephen Gaynor School (Stephen Gaynor) 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, the student attended Stephen Gaynor for the 2023-24 school year (see Dist. Ex. 5).  On January 23, 2024, the parents signed a reenrollment contract with Stephen Gaynor for the 2024-25 school year (Parent Ex. J at pp. 1, 8).  A CSE convened on May 8, 2024, and, finding that the student remained eligible for special education as a student with an other health impairment, developed an IEP with a projected implementation date of May 22, 2024 (Dist. Ex 1 at pp. 1, 27).  The May 2024 CSE recommended the student receive 35 periods per week of integrated co-teaching (ICT) services for all core subject areas, three periods per week of direct individual special education teacher support services (SETSS) in English Language Arts (ELA), one 40-minute session per week of individual counseling services, one 40-minute session per week of counseling services in a group of three, one 40-minute session per week of individual speech-language therapy services, and two 40-minute sessions per week of speech-language therapy services in a group of three (id. at pp. 1, 21-22, 27).

By letter dated August 15, 2024, the parents notified the district of their disagreement with the recommendations of the May 2024 CSE, asserted that they had not yet received a copy of the May 2024 IEP, that the CSE had failed to properly evaluate the student, and that, although they had received the district's school location letter, they had previously toured the assigned public school site and found that it was inappropriate for the student (Parent Ex. B at pp. 1-2).  The parents further notified the district that they were unilaterally enrolling the student at Stephen Gaynor for the 2024-25 school year and would seek tuition reimbursement for the student's unilateral placement (id. at pp. 2-3).

The student began attending Stephen Gaynor on September 4, 2024 (Parent Ex. I at p. 1).

A. Due Process Complaint Notice

By due process complaint notice dated September 4, 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).  As relief, the parents sought, among other things, an order directing the district to fund the costs of the student's tuition at Stephen Gaynor, as well as the costs of the student's transportation during the 2024-25 school year and reimbursement to the parents for monies paid to Stephen Gaynor during the 2024-25 school year and for the evaluations paid for by the parents (id. at pp. 8-9).

B. Impartial Hearing Officer Decision

On January 17, 2025, the parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. pp. 14-128).[1]  In a decision dated April 26, 2025, the IHO found that the district did not offer the student a FAPE for the 2024-25 school year but that the parents failed to meet their burden of proving that Stephen Gaynor was an appropriate unilateral placement for the student (IHO Decision at pp. 11, 13).[2]^, [3]  The IHO dismissed all the parents' remaining claims (id. at p. 18).

IV. Appeals for State-Level Review

The parents, through their attorney, previously filed a request for review dated June 3, 2025 with the Office of State Review ("June 2025 request for review").  The Office of State Review received the June 2025 request for review and opened an appeal designated Application of a Student with a Disability, Appeal No. 25-329.  In a letter from the Office of State Review, dated June 25, 2025, the parents' attorney was informed that the parents' request for review was being rejected because it was not properly verified.  Nevertheless, the parents were provided an opportunity to cure the defect and prepare a properly verified request for review which had to be served upon the district no later than July 2, 2025.  In the same letter, the parents' attorney was informed that no further action would be taken, and the matter would be administratively closed if a properly verified request for review (amended request for review) was not served upon the district by the deadline and thereafter filed with the Office of State Review.  On July 8, 2024, six days after the deadline set forth in the June 25, 2025 letter for serving a properly verified request for review had elapsed, the Office of State Review sent a letter notifying the parents that "in the absence of an amended request for review," the appeal, Application of a Student with a Disability, Appeal No. 25-329, had been administratively closed.

In a letter to the Office of State Review, received on July 14, 2025,[4] the parents' attorney who had represented the parents during the impartial hearing indicated that she "had only recently bec[o]me aware" of the rejection of the parents' request for review and requested leave to serve and file an amended request for review.

On August 12, 2025, the parents served a request for review on the district by electronic mail ("August 2025 request for review").  With the request for review, the parents' attorney submitted an "Affirmation in Support of Motion to Accept Refiled Request for Review" (Att'y Affirm.).  The current appeal file, Application of a Student with a Disability, Appeal No. 25-502, was duly opened by the Office of State Review.[5]

With respect to the substance of the appeal, the parents allege that the IHO erred by determining that the parents failed to prove that Stephen Gaynor was an appropriate unilateral placement for the student.  The parents assert that the evidence presented established that Stephen Gaynor provided the student with educational instruction specifically designed to meet the student's unique needs.  The parents assert that the IHO misrepresented the testimony of two of the parents' witnesses and the testimony of the student's mother.  The parents argue that the IHO also misrepresented the information contained in the neuropsychological reevaluation.  The parents assert that there are no equitable considerations that would warrant a reduction in funding and that the district should be ordered to fund the cost of the student's tuition at Stephen Gaynor for the 2024-25 school year.

In an answer, the district argues that the IHO correctly found the parents did not meet their burden of demonstrating the appropriateness of Stephen Gaynor, and further assert that the parents' appeal should be dismissed for failure to comply with the practice regulations.

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 April 26, 2025; thus, the parents had until June 5, 2025 to personally serve the district with a verified request for review (see IHO Decision at p. 18; 8 NYCRR 279.4[a], 279.11[b]).  The parents' attorney served the request for review upon the district by email on August 12, 2025, approximately 69 days late (see Aug. 12, 2025 Parent Affirm. of Serv.).

No good cause for the untimely appeal was set forth in the request for review as required by State regulation (8 NYCRR 279.13).  In the attorney affirmation submitted with the request for review, the parents' attorney explains that she served and filed the June 2025 request for review within 40 days of the IHO's April 26, 2025 decision but acknowledges that the appeal was rejected by the Office of State Review with leave to amend (Att'y Affirm. ¶¶ 1-3).  The parents' attorney shares in her affirmation that, due to medical reasons, her "ability to monitor and respond to correspondence in the usual manner" was temporarily affected, which "impacted [her] ability to meet the amendment deadline" (id. ¶ 3).

Even had the reasons for the late filing been set forth in the request for review, the attorney's failure to amend the original 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]).  While I sympathize with the parents' attorney's medical reasons, there is no articulation as to whether the medical treatments were unexpected and/or outside of her reasonable control (see Application of a Student with a Disability, Appeal No. 25-380).  Further, to the extent the medical treatments were foreseeable, there is no explanation why the parents' attorney did not make arrangements for interim coverage of her pending matters or contact the Office of State Review to advise that she would temporarily be unable to receive communications regarding the appeal she had initiated.

The parents' attorney asserts that, since the district was aware of the content of the June 2025 request for review, the district would suffer "no prejudice" from acceptance of the August 2025 request for review (Att'y Affirm. ¶ 5).  However, lack of prejudice to the district is not a reason why service of the August 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"]).

In the reply, the parents' attorney argues that the contention that the appeal should be dismissed for untimeliness is one of form over substance.  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 parents were granted the opportunity to cure the defects with the June 2025 filing.  The process employed was used to preserve every opportunity for the parents to file an appeal that was compliant with the practice regulations.  In the absence of an amended request for review, the file was administratively closed without a determination.  This too was used in an effort to preserve the possibility that the parents 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.  Had the parents' appeal been dismissed in a final decision in Application of a Student with a Disability, Appeal No. 25-329, 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 parents in this case did avail themselves of the opportunity to file a late appeal; however, examination of the August 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).

Accordingly, because the parents 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]).

VI. Conclusion

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

THE APPEAL IS DISMISSED.