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 dismissed the parent's due process complaint notice for lack of subject matter jurisdiction.  The appeal must be dismissed.

II. Overview—Administrative Procedures

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c).  The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely 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, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).  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 procedural posture of the matter—namely that it was dismissed with prejudice prior to an impartial hearing—there was no development of an evidentiary record regarding the student through testimony or exhibits entered into evidence.  Accordingly, the description of the facts is limited to the procedural history including the allegations in the parent's due process complaint notice, the district's response, and the IHO's dismissal of the due process complaint notice with prejudice.

A. Due Process Complaint Notice

In a due process complaint notice dated July 11, 2025, the parent, through a non-attorney advocate, alleged that respondent (the district) denied the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to locate a provider for the student's five periods per week of special education teacher support services (SETSS) in Yiddish (Due Process Compl. Not. at pp. 1-2).[1]  According to the parent, the student was classified as a student with a speech or language impairment and a CSE convened on February 6, 2023, to develop an IESP for the student and recommended five periods per week of SETSS delivered in Yiddish. (id. at p. 1).  The parent then asserted that the CSE reconvened on January 29, 2024 and recommended that the student receive the same services (id.).  However, the parent alleged that district did not locate or identify any providers to deliver the services mandated in the IESPs to the student for the 2023-24 school year (id.).  Due to the district's failure, the parent alleged she secured private providers for the student's SETSS and requested that the district pay for the privately obtained services at the provider's contracted rate (id. at p. 2).  The parent also sought funding for SETSS during the pendency of the matter (id.).  The parent alleged that the recommended program and services set forth in the student's IESPs were appropriate for the 2023-24 school year, the privately appointed provider was appropriate to meet the student's needs, the program was reasonably calculated to enable the student to receive an educational benefit, and equitable considerations weighed in the parent's favor (id. at p. 4).

In its due process response dated July 24, 2025, the district generally denied the allegations contained within the due process complaint notice and attached a prior written notice (Due Process Response at pp. 1, 3-4).  The prior written notice indicated that the CSE convened on February 6, 2023, found the student eligible for special education, and developed an IESP for the student that recommended that the student receive five periods per week of SETSS in Yiddish (id. at pp. 3-4).

B. Motion to Dismiss and Impartial Hearing Officer Decision

An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter.  In a motion to dismiss, dated August 19, 2025, the district requested that the IHO dismiss the parent's due process complaint notice on the ground that the IHO lacked subject matter jurisdiction to adjudicate the parent's claim, which the district characterized as an "implementation or rate dispute" (Mot. to Dismiss at pp. 2-4).  The district argued that, under State Education Law, "there is not, and never has been, a right to bring a complaint for implementation of IESP claims or enhanced rate services" (id. at p. 4 [emphasis omitted]).  In a response to the district's motion, dated August 28, 2025, the parent alleged that the claim "at its very core" was an educational placement one and, thus, the IHO had jurisdiction over the claim (Response to Mot. to Dismiss at p. 1).

In a decision dated September 3, 2025, the IHO dismissed the parent's due process complaint notice for lack of subject matter jurisdiction (IHO Decision at p. 2).  The IHO determined that she lacked subject matter jurisdiction over the parent's claim seeking implementation of equitable services under Education Law § 3602-c, because "it [wa]s clear that the New York State legislature did not intend to grant parents the right to a due process hearing before an IDEA IHO for 'failure to implement' claims under § 3602-c" (id. at p. 15).  Ultimately, the IHO granted the district's motion and dismissed the parent's due process complaint notice in its entirety "with prejudice with respect to this forum, but without prejudice to refile in an appropriate forum" (id. at p. 18).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in dismissing the due process complaint notice seeking reimbursement for SETSS and regarding pendency.  The parent seeks an order reversing the IHO's decision and granting the relief requested in the due process complaint notice.  The parent notes that she did not timely serve and file the request for review but requests that the appeal be accepted indicating that, due to her "religious observances of Rosh Hashanah, Yom Kippur, and Sukkot," she was unable to "work or communicate about this appeal."[2]

In an answer, the district alleges that the request for review should be dismissed as untimely and that the IHO's dismissal of the parent's due process complaint notice was appropriate.  With respect to untimeliness, the district asserts that the parent failed to initiate the appeal in accordance with the timelines prescribed in Part 279 of State regulations and failed to assert good cause for the failure to timely initiate the appeal, as "religious observances on their own do not constitute good cause to excuse the delay."  The district also points out that the parent failed to serve a notice of intention to seek review and "d[id] not claim that they received the [IHO's] Decision late or that they were unable to review the Decision or work on the appeal during days on which there were not religious observances or holidays."

V. Discussion—Timeliness of Request for 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 district is correct that the parent failed to properly initiate the appeal in accordance with the timeline prescribed in Part 279 of the State regulations.  The IHO's decision was dated September 3, 2025 (IHO Decision at p. 18).  Monday, October 13, 2025, the 40th day after the date of the IHO decision, was a legal holiday (Columbus Day), and, therefore, the parent had until Tuesday, October 14, 2025, to serve a verified request for review upon the district (id.; see also 8 NYCRR 279.4[a]; 8 NYCRR 279.11[b]).  However, the verified request for review was not served until October 17, 2025, approximately three days late (see Parent Aff. of Electronic Serv.).

The parent has failed to provide a good cause basis as to why the notice of request for review and verified request for review were not timely served.  The parent's assertion that the observation of religious holidays and her deeply held religious beliefs resulted in the late filing does not constitute good cause for the delay.  The parent indicates that she was unable to timely serve the request for review due to her observance of three religious holidays that occurred during the 40 day period from the date of the IHO's decision for serving a request for review.  As noted above, State regulation explicitly provides that if the last day for service falls on a Saturday, Sunday, or legal holiday, service may be made on the following business day, but does not contain other exceptions (8 NYCRR 279.11[b]; see Gen. Const. Law §§ 24-25-a [addressing public holidays]; M.G. v. Rye City Sch. Dist., 2025 WL 343617, at *5 [S.D.N.Y. Jan. 30, 2025] [finding that a date that the school district's offices were closed was not a "legal holiday" under the regulations governing practice before the Office of State Review and citing the holidays outlined in the General Construction Law]; Bloom v. New York City Transit Auth., 19 A.D.2d 521, 521 [1st Dept. 1963] [noting that "a day of religious observance is not to be deemed a public holiday unless so proclaimed by the President or the Governor]).  Accordingly, in accounting for holiday observances, State regulation only provides additional time for service where the legal holiday falls on the date of service and, for other holidays and/or holidays that fall during the remainder of the time period, parties are expected to manage their own schedules.  The relevant extension of the timeline for a public holiday was applied in this case and the parent's initiation of the appeal was nevertheless untimely.  The parent has not alleged any circumstances or events beyond her control which prevented her from working on or serving the appeal during the 40 day timeline on days where there was no religious observation (see generally Req. for Review).  Additionally, in this instance, even if the holidays raised by the parent were legal holidays that had fallen on the last date for service, October 14, 2025, permitting service of the request for review on the next business day, the parent instead waited an additional two days to serve the request for review on October 17, 2025.

As the parent failed to properly initiate this appeal by effectuating timely service upon the district and there was not 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

In summary, the appeal must be dismissed due to the parent's failure to timely initiate the appeal pursuant to the practice regulations governing appeals before the Office of State Review.

I have considered the parties' remaining contentions and find them unnecessary to address in light of my determination above.

THE APPEAL IS DISMISSED.