24-091
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
First Step Advocacy, attorneys for petitioner, by Aryeh P. Joffe, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Michael P. Heitz, Esq., and Brian J. Reimels, Esq.
Decision
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 services delivered to her son by AIM Educational Support Services (AIM) at a specified rate for the 2023-24 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
A CSE convened on September 9, 2023, and, finding the student eligible as a preschool student with a disability, formulated the student's IEP with a projected implementation date of October 16, 2023 that recommended that the student receive two 30-miniue sessions of speech-language therapy in a group of two (see generally Parent Ex. B).
On October 31, 2023, the parent entered into a parent service contract with AIM to provide the student with two periods of speech-language therapy weekly at a specified rate for the 2023-24 school year (Parent Ex. C).
In a due process complaint notice, dated November 9, 2023, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to locate a provider to implement the student's speech-language therapy services (see Parent Ex. A). The parent further alleged that she found a speech-language therapy provider to deliver services to the student for the 2023-24 school year but at an enhanced rate (id. at p. 2). As relief, the parent requested a pendency order based on the September 2023 IEP; an order directing the district to fund the student's speech-language therapy provided by the private agency for the entire 2023-24 school year; and a bank of compensatory services for any service the student missed while without a provider (id.).
An impartial hearing convened on December 22, 2023 and concluded on January 30, 2024 after two days of proceedings inclusive of one pre-hearing conference (Tr. pp. 1-24). A representative from the district did not appear at the December 22, 2023 prehearing conference (see Tr. pp. 1-8). At the impartial hearing held January 30, 2024, the district did not enter any documentary or testimonial evidence into the hearing record (see Tr. pp. 9-24). The parent entered five documents into evidence but did not present any testimonial evidence (id.).
In a decision dated February 7, 2024, the IHO determined that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 school year because it did not present any evidence that it provided or attempted to provide the student with speech-language therapy as mandated by the September 2023 IESP (IHO Decision at p. 9). The IHO also determined that the parent did not meet her burden to show that the speech-language services provided by AIM were appropriate under the Burlington/Carter standard and that the equitable considerations did not weigh in favor of the parent or the district (id.). Accordingly, the IHO denied the parent's request for direct funding for the unilaterally obtained speech-language therapy (id.).[1] Regarding the parent's request for a pendency order, the IHO noted that pendency arises automatically upon filing of a due process complaint notice (id.). As for compensatory education, the IHO indicated that there was no evidence that any missed speech-language therapy resulted in an educational deficit (id.). As a result, the IHO denied the parent her requested relief (id. at p. 10).
IV. Appeal for State-Level Review
The parent appeals and argues that the IHO erred in finding she was not entitled to funding for the student's speech-language therapy provided by AIM. As relief, the parent requests that the IHO's decision be reversed and for an order directing the district to fund the costs of the student's services provided by AIM at the contract rate for the entire 2023-24 school year, and an order for a bank of compensatory education for the services the student missed due to the lack of a pendency order.
In an answer, the district argues that the IHO decision should be upheld. The district also asserts that the parent's request for review should be dismissed for failure to comply with practice regulations governing appeals before the Office of State Review. Specifically, the district argues that the request for review was not timely served and that the request for review lacked verification by the parent.[2]
V. Discussion
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 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's decision was dated February 7, 2024; thus, the parent had until March 18, 2024—a Monday, 40 days after the date of the IHO decision—to personally serve the district with a verified request for review (see IHO Decision at pp. 1, 10; see 8 NYCRR 279.4[a]). The parent failed to file proof of service of the request for review and did not file a notice of request for review with the Office of State Review in further violation of State Regulations (see 8 NYCRR 279.4[e]).[3] However, according to the additional document provided by the district with its answer, the parent through her attorney personally served the district via email on March 19, 2024 with the message "[p]lease find the attached appeal" (SRO Ex. 1).[4] Moreover, the request for review filed with the Office of State Review on March 19, 2024, is also dated March 19, 2024, which means that the parent could not have served the request for review any earlier than March 19, 2024 making the parent's appeal one day late.[5]
Additionally, 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. 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"]).
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 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 request for review must be dismissed because the parent failed to properly initiate the appeal, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
[1] Regarding the parent's request for funding directly to the agency, as opposed to reimbursement, the IHO found that the hearing record lacked evidence that the parent did not have the means to front the costs of the student's speech-language therapy (IHO Decision at p. 9). Although I do not reach the question of relief in this matter, I note that, recently, the District Court for the Southern District of New York has ruled in certain cases that proof of a lack of financial resources is not required before direct funding may be ordered (see Cohen v. New York City Dep't of Educ., 2023 WL 6258147, at *4-*5 [S.D.N.Y. Sept. 26, 2023] [ruling that parents "are not required to establish financial hardship in order to seek direct retrospective payment"]; Ferreira v. New York City Dep't of Educ., 2023 WL 2499261, at *10 [S.D.N.Y. Mar. 14, 2023] [finding no authority requiring "proof of inability to pay . . . to establish the propriety of direct retrospective payment"]; see also Maysonet v. New York City Dep't of Educ., 2023 WL 2537851, at *5-*6 [S.D.N.Y. Mar. 16, 2023] [declining to reach the question of whether parents must show their inability to pay in order to receive an award of direct tuition funding but, instead, considering additional evidence proffered by the parents about their financial means to award direct tuition payment]).
[2] The district submits with its answer additional evidence to be consider on appeal consisting of an email thread between the parties regarding personal services of the request for review (see SRO Ex. 1). Generally, documentary evidence not presented at an impartial hearing is considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]). Here, the additional evidence concerns when the parent served her request for review upon the district and, therefore could not have been offered at the time of the impartial hearing and is necessary for addressing the parties' arguments about the timeliness of the parent's appeal. Accordingly, the document has been considered.
[3] The attorney filled out the form for electronic filing with the Office of State Review, indicating that the district had been served on March 19, 2024; the attorney also confirmed that she included an affidavit of service of the request for review with the filing, yet no proof of service of the request for review was actually filed with the appeal.
[4] Although the parent's appeal filing did not include an affidavit of service of the notice of intention to seek review, the parent's attorney did submit with the notice of intention to seek review an email correspondence with the district's attorney, dated February 29, 2024, in which the district indicated it consented to receive service via email.
[5] The district also argues that the parent's request for review should be rejected because it did not include a verification by the parent (see 8 NYCRR 279.7[b]). However, the parent filed with the Office of State Review a signed affidavit of verification by the parent which was notarized March 18, 2024. Despite this filing by the parent, the verification was notarized one day before the request for review was dated—March 19, 2024—which calls into question whether the parent verified the same version of the request for review that was ultimately filed in this matter. Given that the undersigned is dismissing the parent's appeal due to it being untimely, it is not necessary to address this issue further. However, moving forward, counsel for the parent should ensure that she reviews Part 279 and conforms her practice accordingly, for while a singular failure to comply with the practice requirements of Part 279 may not warrant an SRO exercising his or her discretion to dismiss a request for review (8 NYCRR 279.8[a]; 279.13; see Application of a Student with a Disability, Appeal No. 16-040), an SRO may be more inclined to do so after repeated failures to comply with the practice requirements (see Application of a Student with a Disability, Appeal No. 16-060; see also Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040).
Topical Index
[1] Regarding the parent's request for funding directly to the agency, as opposed to reimbursement, the IHO found that the hearing record lacked evidence that the parent did not have the means to front the costs of the student's speech-language therapy (IHO Decision at p. 9). Although I do not reach the question of relief in this matter, I note that, recently, the District Court for the Southern District of New York has ruled in certain cases that proof of a lack of financial resources is not required before direct funding may be ordered (see Cohen v. New York City Dep't of Educ., 2023 WL 6258147, at *4-*5 [S.D.N.Y. Sept. 26, 2023] [ruling that parents "are not required to establish financial hardship in order to seek direct retrospective payment"]; Ferreira v. New York City Dep't of Educ., 2023 WL 2499261, at *10 [S.D.N.Y. Mar. 14, 2023] [finding no authority requiring "proof of inability to pay . . . to establish the propriety of direct retrospective payment"]; see also Maysonet v. New York City Dep't of Educ., 2023 WL 2537851, at *5-*6 [S.D.N.Y. Mar. 16, 2023] [declining to reach the question of whether parents must show their inability to pay in order to receive an award of direct tuition funding but, instead, considering additional evidence proffered by the parents about their financial means to award direct tuition payment]).
[2] The district submits with its answer additional evidence to be consider on appeal consisting of an email thread between the parties regarding personal services of the request for review (see SRO Ex. 1). Generally, documentary evidence not presented at an impartial hearing is considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]). Here, the additional evidence concerns when the parent served her request for review upon the district and, therefore could not have been offered at the time of the impartial hearing and is necessary for addressing the parties' arguments about the timeliness of the parent's appeal. Accordingly, the document has been considered.
[3] The attorney filled out the form for electronic filing with the Office of State Review, indicating that the district had been served on March 19, 2024; the attorney also confirmed that she included an affidavit of service of the request for review with the filing, yet no proof of service of the request for review was actually filed with the appeal.
[4] Although the parent's appeal filing did not include an affidavit of service of the notice of intention to seek review, the parent's attorney did submit with the notice of intention to seek review an email correspondence with the district's attorney, dated February 29, 2024, in which the district indicated it consented to receive service via email.
[5] The district also argues that the parent's request for review should be rejected because it did not include a verification by the parent (see 8 NYCRR 279.7[b]). However, the parent filed with the Office of State Review a signed affidavit of verification by the parent which was notarized March 18, 2024. Despite this filing by the parent, the verification was notarized one day before the request for review was dated—March 19, 2024—which calls into question whether the parent verified the same version of the request for review that was ultimately filed in this matter. Given that the undersigned is dismissing the parent's appeal due to it being untimely, it is not necessary to address this issue further. However, moving forward, counsel for the parent should ensure that she reviews Part 279 and conforms her practice accordingly, for while a singular failure to comply with the practice requirements of Part 279 may not warrant an SRO exercising his or her discretion to dismiss a request for review (8 NYCRR 279.8[a]; 279.13; see Application of a Student with a Disability, Appeal No. 16-040), an SRO may be more inclined to do so after repeated failures to comply with the practice requirements (see Application of a Student with a Disability, Appeal No. 16-060; see also Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040).