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 reimburse the parent for her son's private services delivered by Learning Learners, LLC (Learning Learners) for the 2025-26 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 May 15, 2023, found the student eligible for special education services as a student with a speech or language impairment and developed an IESP with a projected implementation date of September 7, 2023 (Parent Ex. B at pp. 1, 7, 10).[1] [2] The May 2023 CSE recommended that the student receive five periods per week of direct group special education teacher support services (SETSS), one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, one 30-minute session per week of individual occupational therapy (OT), and one 30-minute session per week of group OT, (id. at pp. 7-8).[3]  On September 9, 2025, the parent entered into a contract with Learning Learners to provide the student with "the required [s]pecial [e]ducation and related services program to whatever extent possible for the 2025-26 school year" (Parent Ex. E at pp. 1, 3).  By 10-day notice letter dated September 17, 2025, the parent, through her attorney, advised the district that she had been unable to locate providers for the student's mandated services at the district's standard rate (Parent Ex. D at p. 1).  The parent further stated that she would "implement the IESP on [her] own and seek reimbursement or direct payment from the [district]" (id.).  According to the hearing record, Learning Learners provided the student with individual SETSS for the 2025-26 school year (Parent Ex. G ¶¶ 9, 10).[4]

1. Due Process Complaint Notice

In a due process complaint notice dated September 17, 2025, the parent, through an attorney, alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 school year (Parent Ex. A at pp. 2, 3).  The parent sought pendency and asserted that the student's pendency services were based on the last agreed upon program set forth in the May 2023 IESP (id. at p. 2).  The parent further claimed that the CSE had not convened to develop an IESP for the 2025-26 school year and that the delay in convening a CSE and recommending a "proper placement and services" was a denial of a FAPE to the student (id.).  With regard to the May 2023 IESP, the parent alleged that she had been unable to locate a provider willing to accept the district's standard rate and that the district had failed to implement the May 2023 CSE's recommendations for the 2025-26 school year (id. at pp. 2-3).  The parent also contended that "[w]ithout the supports, the parental mainstream placement [wa]s untenable" and that "the failure to either implement the services or provide a placement [wa]s a denial of a FAPE for the 2025-26 school year" (id. at p. 3).  As relief, the parent requested findings that the failure to convene a CSE and recommend placement or services was a denial of a FAPE to the student for the 2025-26 school year, and that the failure to implement the May 2023 IESP for the 2025-26 school year was a denial of a FAPE to the student (id.).  The parent further requested funding for the program "outlined in the IESP dated" May 2023 for the 2025-26 school year at the provider's contracted rate, funding for a bank of compensatory periods of all services, "or the parts of which were not serviced" including pendency, to be funded at the prospective provider's contracted rate (id.).  In a September 25, 2025 response to the due process complaint notice, the district denied the parent's allegations and notified the parent of its intent to raise various defenses (Response to Due Process Compl. Not. at pp. 1-5).

2. Impartial Hearing and Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 5, 2025 (Tr. pp. 1-48).  In a decision dated November 14, 2025, the IHO found that the district failed to fulfill its legal obligations to the student for the 2025-26 school year (IHO Decision at p. 6).  The IHO found that the district "declined" to offer a cogent and responsive explanation for its decisions in creating an IESP (id. at p. 6).  The IHO further found that the district failed to "present any evidence or testimony [to] contest the allegations that it failed to hold an updated IESP meeting, or any compelling evidence regarding the failure to implement the out-of-date IESP," and that such failures constituted substantive violations of its obligation to the student (id. at p. 6).  The IHO declined to apply the three-prong Burlington/Carter analysis to the parent's claims and applied a compensatory education analysis instead (id. at pp. 6-9).  The IHO then determined that the parent's requested relief was appropriate and ordered the district to fund the student's unilaterally obtained SETSS for the 2025-26 school year (id. at pp. 9-10).  The IHO also found that the provider's rate of $215 per hour of individual SETSS was appropriate (id.).  The IHO ordered the district to fund the student's "last-agreed upon program and services" for pendency of these proceedings and fund the student's SETSS provided by Learning Learners or another "qualified provider" of the parent's choosing from September 9, 2025 through the duration of the 2025-26 school year at a rate of $215 per hour (id. at pp. 10, 11).

IV. Appeal for State-Level Review

The district appeals and alleges that the IHO erred in awarding funding for the student's unilaterally obtained SETSS for the 2025-26 school year.  Specifically, the district argues that the IHO erred in failing to apply a Burlington/Carter analysis to the parent's claims and should have found that the unilaterally obtained services were inappropriate.  The district contends that the IHO erred in ordering pendency and that if the unilateral services were to be found appropriate, the IHO should have reduced the relief from amount of the contracted rate of the parent's SETSS provider to an hourly rate of $63.99 (or alternatively $89.39).

The parent has not interposed an answer.

V. 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 December 23, 2025, the district electronically served the request for review by "electronic mail addressed directly to Parent/Respondent" (see Dist. Decl. of Serv.).  The declaration of service further indicates that the parent "consented to accept service of documents in this proceeding by electronic mail" on December 11, 2025 (see Dist. Decl. of Serv.).[5]  

Notably, the district's declaration of service of the request for review does not include the name of the parent served, describe the email address to which the request for review was puportely sent, and the declaration of service is unsigned (8 NYCRR 279.7[a]).  Notwithstanding the purported agreement described in the declaration of service, the district did not submit evidence to corroborate such agreement or otherwise demonstrate that the parent agreed to waive personal service (id.).

The declaration of service itself is defective for the reasons described above and cannot support the conclusion that this appeal was properly initiated by the district.  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 required by State regulation, as the declaration 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, other than the district's declaration of service, there is no indication that the parent agreed to accept service of the request for review and supporting documents via electronic mail.  Absent explicit waiver of personal service by the parent, service on an attorney is only appropriate once the matter is pending (8 NYCRR 279.5[e]; 279.6[c]; see CPLR 2103[b]).  An attorney 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]).  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]).

Lastly, I note that the attorney who filed the due process complaint notice recently submitted correspondence arguing that the parent was not properly served with the request for review and only recently retained the attorney for representation in this appeal.  However, such arguments are required to be set forth in a verified pleading served upon the opposing party and filed in accordance with Part 279.  If the timeline for filing the responsive pleading has elapsed, the better course is to file a request for a specific extension of time in accordance with the procedures outlined by the Office of State Review. In this instance, the request is denied given the disposition of this matter. The parent also requests that the Office of State Review provide the hearing record to the parent as well as materials from the district's appeal.  However, the parent should file her request with OATH and/or the district if she believes either agency failed to provide her with the materials as required by Part 200 or Part 279.

VII. Conclusion

The request for review must be 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.