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 costs of her daughter's private services delivered by EDopt, LLC (EDopt) for the 2023-24 school year.  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 limited scope of this appeal and the disposition of this matter on procedural grounds, a detailed recitation of facts relating to the student's educational history is not necessary.

In a due process complaint notice dated July 16, 2024, the parent, through a lay advocate, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to assign providers to deliver services recommended in the student's May 21, 2021 IESP (Parent Ex. A at pp. 1-2).  Among other relief, the parent requested funding for the student's unilaterally obtained special education teacher support services (SETSS) for the 2023-24 school year (id. at p. 3).[1]

The parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH), and, on March 27, 2025, an impartial hearing was held (see Tr. pp. 1-25).  In a decision dated October 6, 2025, the IHO found that the district denied the student a FAPE for the 2023-24 school year by failing to implement the student's May 2021 IESP (IHO Decision at pp. 5-6).  Regarding the appropriateness of the unilaterally obtained SETSS, the IHO found that, because the parent did not submit a class schedule for the student or any curriculum materials, "it [was] not possible to ascertain whether [the][s]tudent received special education support to access the general education curriculum" (id. at p. 7).  Thus, the IHO concluded that the parent failed to prove that the unilaterally obtained SETSS were reasonably calculated to meet the student's needs for the 2023-24 school year and denied the parent's request for the district to fund those services for the 2023-24 school year (id. at pp. 7, 9).

IV. Appeal for State-Level Review

The patent appeals the portion of the IHO's decision which found that the parent failed to prove the appropriateness of the unilaterally obtained SETSS, specifically arguing that the IHO erred in relying on the lack of evidence regarding the student's general education curriculum and how the unilaterally obtained SETSS enabled the student to access that curriculum.

In an answer, the district responds to the parent's material allegations and argues that the IHO's decision should be upheld in its entirety.  In addition, the district argues that the parent's appeal should be dismissed as untimely served and did not comply with State regulations governing appeals before the Office of State Review.

V. Discussion –- Timeliness of Request for Review

As a threshold matter, it must be determined whether the parent's 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 district is correct that the parent failed to initiate the appeal in accordance with the timelines prescribed in Part 279 of the State regulations.  The IHO rendered her decision on October 6, 2025 (IHO Decision at pp. 1, 9).  The parent was therefore required to serve the request for review on the district no later than Monday, November 17, 2025 (see 8 NYCRR 279.4, 279.11[b]).[2]  The parent's lay advocate filed an "affidavit of personal service" stating that, on November 17, 2025, he served the request for review by email to the district's managing attorney (Parent Aff. of Serv.).[3]  However, the district asserts that the parent did not actually serve the pleading until Wednesday, November 19, 2025.

With its answer, the district filed an attorney declaration made under the "penalties of perjury" by a district attorney who manages the appeals division of the district's special education unit (declarant) and additional evidence consisting of emails between the parties' representatives regarding the service of documents in this matter (see Decl.; SRO Exs. A-C).[4]  The declarant states that he communicated with the parent's advocate by email on October 31, 2025 to consent on behalf of the district to service by electronic mail (Decl. ¶ 4; SRO Ex. A).  By email dated November 3, 2024, the parent's advocate served the district with a notice of intention of intention to seek review (Decl. ¶ 4; SRO Ex. A [listing a document as an "Attachment[]" to the email]).  On November 17, 2025 at 11:00 p.m., the parent's lay advocate emailed the declarant, stating "[p]lease see the attached parents RFR" (Decl. ¶ 6; SRO Ex. B).  Unlike the parent's notice of intention to seek review, the November 17, 2025 email from the parent's lay advocate does not reflect that there was an attachment to the email (see SRO Ex. B).  On November 18, 2025 at 8:59 p.m., the declarant emailed the parent's lay advocate informing him that his previous email lacked an attachment (Decl. ¶ 7; SRO Ex. C).  On November 19, 2025 at 9:57 a.m., the parent's lay advocate emailed the declarant, with the parent's request for review attached, stating "[s]orry, my bad" and "[h]ere you go" (Decl. ¶ 7; SRO Ex. C).

The parent did not file a reply to respond to the district's assertion that the appeal is untimely.  Based upon my review of the district's unrefuted additional evidence, the parent did not serve the district within the timelines set forth in State regulation.  State regulation requires personal service in order to initiate an appeal and makes clear that "[s]ervice shall be complete upon delivery to the party being served" (8 NYCRR 279.4[a], [b], [d]).  Here, although the district consented to service by email, service was not effectuated until November 19, 2025, and the parent's attempt to serve the district on November 17, 2025 was defective and incomplete (see Decl. ¶¶ 7-8; SRO Ex. C).  While New York courts and the Office of State Review have increasingly permitted service of process by email as an alternative form of service and the Office of State Review has not interjected when the parties mutually agree to service by email instead of personal service as required by State regulations, in order to be effectuated, service by email must comport with due process and appraise a party of the action (see e.g., Alfred E. Mann Living Tr. v. ETIRC Aviation S.a.r.l., 78 A.D.3d 137, 140-43 [1st Dep't 2010] [noting that alternative service by email or fax is generally proper unless there is a showing that the defendant did not receive the transmitted information]; In re J.T., 53 Misc. 3d 888, 893 [N.Y. Fam. Ct. 2016] [holding that service of process was reasonably calculated to apprise the respondent of the proceeding]).

In this case, the parent's lay advocate acknowledged that he failed to attach the parent's request for review to his November 17, 2025 email as evidenced by his email to the district on November 19, 2024 when he apologized and attached the request for review (SRO Ex C).  While service by email may afford litigants greater flexibility and convenience, it comes with sacrifices to the formality and assurances that personal service affords.  Here, the parent's lay advocate took a gamble in waiting until literally the eleventh hour, well after business hours, on the last day to timely serve the request for review and in relying on service by email.  The parent's lay advocate's email dated November 17, 2025 at 11:00 p.m. with the IHO case number in the subject line and message in the body of the email stating "[p]lease see attached parents RFR" with no attachments was not reasonably calculated to apprise the district of the parent's appeal and did not comport with due process (see SRO Exs. B-C).  Thus, the parent's November 17, 2025 attempt of service was defective and incomplete.  Ultimately, on November 19, 2025, the parent's lay advocate emailed the request for review to the district's attorney identified in the affidavit of service, but such service was two days late.

Moreover, the parent has failed to assert good cause—or any reason whatsoever—in her request for review for the failure to timely initiate the appeal from the IHO's decision (see 8 NYCRR 279.13).  Accordingly, there is no basis on which to excuse the parent's failure to timely appeal the IHO's decision (see 8 NYCRR 279.13; see also B.D.S. v. Southold Union Free Sch. Dist., 2011 WL 13305167, at *17 [E.D.N.Y. Apr. 26, 2011] [noting that "[i]nadvertence, mistake or neglect does not constitute good cause"]).  As stated, the parent did not file a reply and regardless, waiting until the last evening to attempt service and failing to attach a document to an email do not constitute good cause to excuse untimely service.

Because the parent failed to properly initiate this appeal by effectuating timely service upon the district, and there is no good cause asserted 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. 23-294 [dismissing a parent's appeal for failure to effectuate timely service when the appeal papers were sent by email that was received by the district seven seconds past the deadline for timely service]; 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 request for review must be dismissed because the parent failed to timely initiate the appeal, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.