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.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO).  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

Due to the disposition of this matter on procedural grounds, a detailed recitation of the facts and procedural history is not necessary, nor is it possible as a hearing record has not been submitted, which is explained in more detail below.  The student has been the subject of prior State-level appeals, the parties' familiarity with which is presumed (Application of a Student with a Disability, Appeal No. 25-155; Application of a Student with a Disability, Appeal No. 24-495; Application of a Student with a Disability, Appeal No. 24-494).

IV. Appeal for State-Level Review

According to the request for review, the parents appeal from an IHO decision issued on November 28, 2025.[1]

The parents argue that the IHO failed to oversee a fair hearing as they were denied the right to question witnesses, the IHO's determination was predetermined, and the IHO failed to address all issues before him.  The parents allege that the district improperly placed the student in an interim alternative educational setting (IAES) despite the fact that the student was never actually suspended by the district.  Further, the parents allege that the IHO misapplied the law in determining that the student was in possession of a weapon at school.  The parents assert that all parties and the IHO agreed that the IAES was not a proper placement for the student  and the IHO "neglect[ed] to ensure" that the student receive the program recommended in his IEP or "address[] the fact" that the student had not received proper services in the IAES.  The parents request a finding that placing the student in an IAES was unlawful, a finding that the student was never suspended by the district, and compensatory education for missed special education and services.

The district has not submitted an answer or otherwise appeared in this matter.

V. Discussion

In this instance, the district has not appeared or submitted a hearing record for the underlying proceeding.  Accordingly, as a threshold matter, it must be determined whether the appeal should be dismissed due to improper 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]).  Personal service on a school district is made "by delivering a copy thereof to the district clerk, to a trustee or member of the board of education of such school district, to the superintendent of schools, or to a person who has been designated by the board of education to accept service" (8 NYCRR 279.4[b]).

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]).

On December 8, 2025, the parents, who are not represented, filed the following documents with the Office of State Review: a notice of intention to seek review and case information statement dated December 4, 2025, a request for review dated December 4, 2025 and labeled as "APPEAL OF IHO ORDER 666583," an affidavit of verification of "the annexed petition" sworn to on December 4, 2025, and an affidavit of personal service dated December 4, 2025.  The affidavit of personal service indicates that a nonparty individual served a "notice of intention" and "appeal IHO orders" on December 4, 2025 on the district (Dec. 4, 2025 Aff. of Serv.).  The affidavit of service identifies the first and last name of the individual served and states that her title is "account clerk" (id.).

Given the descriptions in the parents' affidavits of service, the parents did not properly serve the district with the request for review in the manner required by State regulation, as personal service on the school district was not made to the district clerk, a trustee, the superintendent, or person designated by the board of education (see 8 NYCRR 279.4[b]; Application of a Student with a Disability, Appeal No. 20-020; Application of a Student with a Disability, Appeal No. 12-077; see also Appeal of Villanueva, 49 Ed. Dep't Rep. 54, Decision No. 15,956 [personal service under similar regulatory provisions upon unidentified receptionist found improper]; Appeal of Baker, 47 Ed. Dep't Rep. 280, Decision No. 15,696 [service upon the executive secretary to the superintendent found under similar regulatory provisions improper]).  An account clerk is not among the individuals identified in the regulation, and there is no indication in this instance that the district agreed to accept service by delivery of the request for review to the individual identified in the parents' December 2025 affidavit of service.

In prior State level proceedings commenced by the parents, proper service upon the district has been discussed.  In Application of a Student with a Disability Appeal No. 25-155, the requirement that personal service on the district be made on the district clerk, a trustee or member of the board of education, the superintendent of schools, or an individual designated to accept service was recited and, ultimately, the parents' appeal was dismissed on procedural grounds including as related to the lack of proof of personal service on the district.  In Application of a Student with a Disability, Appeal No. 24-495 and Application of a Student with a Disability, Appeal No. 24-494, it appears that the parents served the same individual who was served in this proceeding, identified in those matters as a "secretary"; however, in those matters, the district submitted an answer and did not raise lack of proper service as a defense, thereby waiving the issue.  In both decisions, the SROs recited the regulatory requirements for personal service on the district but noted that proper service would not be discussed given that the district did not raise the defense.[2]

In this matter, the district has not filed an answer nor did it provide the Office of State Review with the hearing record from the impartial hearing, which supports the conclusion that, although the district may have waived the defense of proper service in the prior proceedings, the district did not agree to waive the defense in this proceeding.

As the affidavit of service does not indicate that personal service was made according to State regulation, on the district clerk, a trustee, the superintendent, or person designated by the board of education, the request for review must be dismissed for failure to present proof of proper service.

VI. Conclusion

Based on the foregoing, the appeal is dismissed for failure to properly initiate the appeal.

THE APPEAL IS DISMISSED.