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 district) appeals from a decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) son and ordered it to fund or reimburse the parent for privately obtained services delivered to her son for the 2024-25 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 dismissal of this matter on procedural grounds, a detailed recitation of the facts and procedural history of this matter is not necessary.  Briefly, a CSE convened on November 13, 2023, found the student remained eligible for special education as a student with a speech or language impairment, and developed an IESP for the student with a projected implementation date of December 5, 2023 (Parent Ex. B at pp. 1, 13-14, 16).[1]  The November 2023 CSE recommended that the student receive three periods per week of direct group special education teacher support services (SETSS), three 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual occupational therapy (OT) (id. 13-14).[2]

By letter dated May 28, 2024, the parent, through an attorney who did not later represent her at the hearing in this matter, requested equitable services (June 1 notice) from the district for "the next school year" (Parent Ex. C at pp. 1-2).

The parent electronically signed an agreement with Empowered Kids for Success (Empowered) for the provision of SETSS to the student from September 1, 2024 through June 30, 2025 (Parent Ex. D at pp. 1-2).[3]  The hearing record indicates that Empowered began providing the student with SETSS on September 18, 2024 (Parent Exs. G ¶¶ 4, 9-10; H ¶¶ 6-8).

A CSE convened on February 19, 2025, continued to find the student eligible for special education and related services as a student with a speech or language impairment and developed an IESP with a projected implementation date of March 5, 2025 (Dist. Ex. 7 at pp. 1, 10, 13).  The February 2025 CSE recommended that the student receive three periods per week of direct group SETSS, three 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual OT (id. at p. 10).

In an amended due process complaint notice dated March 25, 2025, the parent expressed "concern[]" regarding implementation of the November 13, 2023 IESP for the 2024-25 school year (Parent Ex. A at p. 2).  The parent alleged that she "ha[d] been unable to locate SETSS and related services providers on []he[]r own accord for the 2024-25 school year and the [d]istrict ha[d] failed to implement [its] own recommendations" (id.).  The parent further claimed that, "[w]ithout supports, the parental mainstream placement [wa]s untenable, and the failure to either implement the services or provide a placement [wa]s a denial of a FAPE for the 2024-25 school year" (id.).  The parent requested implementation of the November 2023 IESP as pendency and "reserve[d] []he[]r right to ask for compensatory SETSS and related services for any periods not provided during the 2024-25 school year (id. at pp. 2, 3).  As relief for the district's failure to implement the November 2023 IESP for the 2024-25 school year, the parent requested an order of funding for the parent's private provider at the contracted for rate, and funding for a bank of compensatory periods of SETSS and related services for the entire 2024-25 school year, "or the parts of which [that] were not serviced" at the provider's for contracted rate (id. at p. 3).[4]

An impartial hearing convened before an IHO (the IHO) with the Office of Administrative Trials and Hearings (OATH) on July 15, 2025, and concluded that same day (Tr. pp. 1-60).  At the impartial hearing, the parent was represented by an attorney from the law firm that filed the due process complaint notice and the amended due process complaint notice (Tr. p. 4).

  In a decision dated July 15, 2025, the IHO found that the district denied the student FAPE for the 2024-25 school year (IHO Decision at pp. 5-6). The IHO ordered the district to reimburse or fund three periods per week of SETSS for the 2024-25 school year, "by an independent provider of [the p]arent's choosing, at a rate not to exceed $200.00 per hour" (id. at p. 6).  The IHO further ordered reimbursement or funding of OT and speech-language therapy, as set forth in the November 2023 and February 2025 IESPs, "by an independent provider of [the p]arent's choosing, at a rate not to exceed $250.00 per hour" (id.).  Finally, the IHO ordered that, because the parent had not yet located providers for the services, "the total hours included in the IESPs for these services for the 2024-2025 school year shall be placed into a bank of compensatory hours, which will expire three years from the date of" the IHO decision (id. at p. 6).

IV. Appeal for State-Level Review

The district appeals and alleges that the parent failed to demonstrate that she requested equitable services on or before June 1, 2024.  The district further asserts that the IHO erred in failing to apply a Burlington/Carter analysis to the parent's claims, that the parent's unilaterally obtained services from Empowered were not appropriate, and that equitable considerations supported a reduction in the amount of the parent's requested rate based on excessive cost.  Lastly, the district requests reversal or clarification of the prior IHO's pendency order.

The parent has not interposed an answer or otherwise appeared in this matter.

VI. Discussion

As a threshold matter, it must be determined whether the appeal should be dismissed due to the district's failure to effectuate personal service of the request for review.

An appeal from an IHO's decision to an SRO—whether the appeal is by a district or a parent—must be initiated by timely personal service of a verified request for review and other supporting documents, if any, upon respondent (8 NYCRR 279.4[b], [c]).  State regulations provide in relevant part that, "[i]n the event that a parent of a student with a disability is named as a respondent in a request for review, personal service of the request for review shall be made by delivering a copy thereof to the parent" (8 NYCRR 279.4[c]).  When personal service upon a parent cannot be made after diligent attempts, an alternative form of service may be effectuated on a person of suitable age and discretion at the parent's residence along with a certified mailing or as directed by an SRO (id.).  The petitioner must personally serve the opposing party with the notice of intention to seek review no later than 25 days after the date of the IHO's decision and with the request for review no later than 40 days after the date of the IHO's decision (8 NYCRR 279.2[b]).  Thereafter, "the notice of intention to seek review, notice of request for review, request for review, and proof of service [must be filed] with the Office of State Review . . . within two days after service of the request for review is complete" (8 NYCRR 279.4[e]).

Here, according to the declaration of service filed with the district's appeal, on August 25, 2025, the district electronically served the request for review by sending an email to a legal assistant at the law office of the attorney who represented the parent at the impartial hearing (see Dist. Decl. of Serv.).  In addition, the declaration further states that the legal assistant "consented to accept service of all papers by email on July 23, 2025" (id.).  Notwithstanding the "consent" described in the declaration of service, the district did not indicate that they inquired or were informed as to whether the parent agreed to waive personal service (id.).  The parent has not appeared in this appeal; nor has an attorney or lay advocate appeared on the parent's behalf.

Given the description in the district's declaration of service, the district has not presented acceptable proof of service of the request for review on the parent in the manner as required by State regulation, as the affidavit of service does not indicate that personal service on the parent was made and there is no evidence demonstrating the parent agreed to waive personal service (see 8 NYCRR 279.4[c]).

State regulations do not preclude a school district and a parent from agreeing to "waive" personal service of the request for review, and it is generally permitted for parties to agree to service by an alternate delivery method (see Application of a Student with a Disability, Appeal No. 25-313).  The Office of State Review's website reflects this option as follows:

The State regulations do not preclude a school district and a parent from agreeing to "waive" the personal service method.  Waiver of personal service is not permitted unless the party being served agrees to accept papers in an alternate delivery method.  If both sides agree, it is strongly advisable for the parties to have such an agreement in writing.

(Overview to Part 279: Filing a Review for Review (Section I): Serve and File the Request for Review [emphasis in the original], available at https://www.sro.nysed.gov/book/serve-and-file-request-review).

Here, there is no indication in the district's declaration of service that there was any communication with an attorney from the law office identified in the declaration.  The communication described was between an attorney for the district and a legal assistant.  Further, the declaration does not indicate that the parent agreed to accept service of the request for review.  Absent explicit waiver of personal service by the parent, service on an attorney or lay advocate is only appropriate once the matter is pending (8 NYCRR 279.5[e]; 279.6[c]; see CPLR 2103[b]).  An attorney, or lay advocate is not automatically cloaked with the authority to accept service of process and, even if counsel represents that he or she can accept process, it is not binding on the client unless the client is aware of the representation (Redbridge Bedford, LLC v. 159 N. 3rd St. Realty Holding Corp., 175 A.D.3d 1569, 1571[2d Dep't 2019]; Broman v. Stern, 172 A.D.2d 475, 476-77 [2d Dep't 1991]).  The district's declaration of service makes no reference to an agreement with the parent regarding service and does not indicate that the district elicited from the attorney or from the law office staff any confirmation of the parent's awareness of the law office's acceptance of service in this matter.  Accordingly, there is insufficient basis to conclude that the parent agreed to waive personal service or consented to service by an alternate delivery method (see Application of the Dep't of Educ., Appeal No. 25-471 [dismissing a district's appeal for failing to effectuate alternate service on the parent and instead serving a lay advocate who represented that he would accept email service on the parent's behalf]; Application of the Dep't of Educ., Appeal No. 25-442 [dismissing a district's appeal, for failure to effectuate proper personal service of the request for review on the parent where the district served the parent's impartial hearing attorney by email without obtaining a waiver of personal service from the parent]; Application of the Dep't of Educ., Appeal No. 25-331 [dismissing a district's appeal for failing to effectuate alternate service on the parent as directed by the SRO and instead serving a lay advocate who represented that she would accept email service on the parent's behalf]; Application of the Dep't of Educ., Appeal No. 25-292 [dismissing a district's appeal for failing to effectuate alternate service on the parent and instead serving a lay advocate who represented that he would accept email service on the parent's behalf]; Application of a Student with a Disability, Appeal No. 24-443 [dismissing a parent's appeal, for failure to effectuate proper personal service of the request for review on the district where the parent served the district's attorney by email without obtaining a waiver of personal service from the district]).

Generally, the failure to comply with the practice requirements of Part 279 of the State regulations, including the failure to properly serve an initiating pleading in a timely manner, may result in the rejection of the submitted documents or the dismissal of a request for review by an SRO (8 NYCRR 279.8[a]; 279.13; see B.C. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 365-66 [S.D.N.Y. Sept. 6, 2013] [upholding an SRO's dismissal of a parent's appeal where, among other procedural deficiencies, the amended petition was not personally served upon the district]; Application of a Student with a Disability, Appeal No. 16-015 [dismissing a parent's appeal for failure to effectuate proper personal service of the petition upon the district where the parent served a district employee not authorized to accept service]; Application of a Child with a Disability, Appeal No. 06-117 [dismissing a parent's appeal for failure to effectuate proper personal service in a timely manner where the parent served a CSE chairperson and, thereafter, served the superintendent but not until after the time permitted by State regulation expired]; see also Application of a Student with a Disability, Appeal No. 12-042 [dismissing parent's appeal for failure to properly effectuate service of the petition in a timely manner where the parent served the district's counsel by overnight mail]; Application of a Student with a Disability, Appeal No. 11-013 [dismissing parent's appeal for failure to timely effectuate personal service of petition upon the district]; Application of a Student with a Disability, Appeal No. 11-012 [dismissing parents' appeal for failure to timely effectuate personal service of petition upon the district]; Application of a Student with a Disability, Appeal No. 09-099 [dismissing parents' appeal for failure to timely effectuate personal service of the petition upon the district]; Application of the Dep't of Educ., Appeal No. 05-082 [dismissing a district's appeal for failure to personally serve the petition upon the parent where the district served the parent's former counsel by overnight mail]; Application of the Dep't of Educ., Appeal No. 05-060 [dismissing a district's appeal for failing to timely file a hearing record on appeal]; Application of a Child with a Disability, Appeal No. 05-045 [dismissing a parent's appeal for, among other reasons, failure to effectuate proper personal service where the parent served a school psychologist]; Application of the Dep't of Educ., Appeal No. 01-048 [dismissing a district's appeal for failure to personally serve the petition upon the parent where the district served the parent by facsimile]).

Under these circumstances, given the deficiencies in compliance with Part 279 and the defect in proof of proper service on the parent, the appeal must be dismissed.

VII. Conclusion

The request for review is dismissed due to the district's failure to initiate the appeal through personal service on the parent pursuant to State regulations; therefore, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.