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 the commencement of 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 filing of the due process complaint notice 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 7, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Due Process Compl. Not.).  According to the parent, a CSE convened on February 24, 2021, found the student eligible for special education services as a student with a speech or language impairment, and developed an IESP for the student, which recommended two 30-minute sessions per week of individual speech-language therapy to be delivered in Yiddish, and two 30-minute sessions per week of individual physical therapy (PT) to be delivered in English (id. at p. 1).  The parent alleged that thereafter, the CSE reconvened on October 18, 2023, and updated those recommendations to provide speech-language therapy in English, which the parent asserted was inappropriate because the student required bilingual instruction (id. at pp. 1, 3).  The parent asserted that the student was entitled to continue the program detailed in the February 24, 2021 IESP pursuant to pendency as the student's last agreed upon program (id. at pp. 3-4).

The parent asserted that the student had been parentally placed at a nonpublic school, and that the district had failed to provide the student with any related service providers for the 2023-24 school year, resulting in the parent having to independently obtain private providers (Due Process Compl. Not. at p. 3).  The parent alleged that although she had found a private speech-language therapy provider, she was unable to locate a provider for the student's recommended PT services (id.).  Accordingly, the parent requested direct funding for the student's speech-language therapy at the provider's contracted rate, as well as a bank of compensatory educational hours for the student's missed PT at a reasonable market rate (id. at pp. 3-4).  The parent further requested copies of all the student's educational files and district communications relating to the student (id. at p. 3).

B. Impartial Hearing Officer Decision

An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter.  In a decision dated September 3, 2025, the IHO determined sua sponte, and without conducting an impartial hearing, that she lacked subject matter jurisdiction to hear the parent's claims seeking "implementation of equitable services" brought under Education Law § 3602-c (IHO Decision at pp. 1-2).   The IHO declined to follow other State-level review decisions holding that dually-enrolled students who receive public school services are considered part-time public school students who are entitled to the same legal protections as public school students (id. at pp. 14-15).  Accordingly, the IHO 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" (IHO Decision at p. 18).

IV. Appeal for State-Level Review

The parent appeals and alleges that the IHO erred in dismissing her case for lack of subject matter jurisdiction, and asserts that the IHO relied on incorrect reasoning.  The parent further alleges that the IHO's decision was contrary to previous SRO decisions and incorrectly reasoned.  The parent argues that the student was dually enrolled and if she was could challenge the CSE's  recommendations in the impartial hearing process, then she should be allowed to challenge the district's failure to provide those services in an impartial hearing.  The parent also asserts that the IHO failed to address her request for pendency.  As relief, the parent requests reversal of the IHO's decision dismissing her claims, that the SRO order her requested relief, and in the alternative, the parent requests remand to a different IHO for a fair impartial hearing on the merits.  Lastly, the parent also requests that the undersigned excuse her untimely request for review.

In an answer, the district responds to the parent's claims with general denials and requests that the parent's appeal be dismissed as untimely.  In the alternative, the district asserts that the IHO correctly dismissed the parent's due process complaint notice for lack of subject matter jurisdiction, and that the parent's pendency claim should be dismissed due to the untimeliness of the request for review.

V. Discussion – Timeliness of Appeal

As a threshold matter, it must be determined whether the parent's appeal should be dismissed for untimeliness.

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 issued her decision on September 3, 2025 (see IHO Decision).  Therefore, the parent had until Tuesday, October 14, 2025 to serve the district with a verified request for review (see IHO Decision at p. 18; see also 8 NYCRR 279.4[a]; 279.11[b]).[1]  However, the verified request for review was not served until October 17, 2025, approximately three days late.[2]

In attempting to establish good cause to excuse the failure to timely initiate the appeal in the request for review, the parent alleges that religious holidays—which fell on the dates September 22, 2025 through September 24, 2025, October 1, 2025 through October 2, 2025, and October 6, 2025 through October 15, 2025—prohibited her from engaging in activities required to prepare, serve and file her request for review  (Req. for Rev. at pp. 1-2).  The district is correct and the parent's arguments are unpersuasive. State regulation provides for extension of a timeline in the case of a legal holiday (8 NYCRR 279.11; see Gen. Const. Law §§ 24-25-a [addressing public holidays]; 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]), and the relevant extension of the 40-day timeline for a public holiday was applied in this case and the parent's initiation of the appeal was nevertheless untimely.  Therefore, the parent has not offered good cause for her delay in initiating the appeal and the district is correct that the appeal should be dismissed.

Because the parent failed to properly initiate this appeal by effectuating timely service upon the district, and there is not sufficient good cause asserted in the parent's request for review to excuse the 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., 971 F. Supp. 2d at 365-67; 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 request for review must be dismissed because the parent failed to timely initiate the appeal pursuant to State regulations, the necessary inquiry is at an end.