25-333
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Eastchester Union Free School District
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 determined that the educational program and services recommended by respondent's (the district's) Committee on Special Education (CSE) for her son for the 2023-24 school year were appropriate. 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 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
Given the disposition of this matter on procedural grounds, a detailed recitation of the facts and procedural history is not necessary. Briefly, on June 20, 2023, a CSE convened, found the student eligible for special education as a student with autism, and developed an IEP with a projected implementation date of September 5, 2023 (Dist. Ex. 6). The June 2023 CSE recommended that the student attend a 12:1+1 special class for math and science, a 15:1 special class for English, and social studies, and receive related services of speech language therapy, occupational therapy (OT), physical therapy (PT), reading instruction in a small group, math instruction in a small group, and parent counseling and training (id. at p. 1).
In three due process complaint notices, all filed pro se, dated February 1, 2024, February 15, 2024, and February 15, 2024,[1] the parent generally alleged "Retaliation[,] Discrimination[,] Negligency [sic] with [the student's] dismissal[,] Purposely making him absent every day when he [was] at school on time[, and] No progress in many areas he ha[d] been failing, such as Math" (IHO Exs. I; IV; X). Among other relief, the parent sought an out-of-district placement for the student, district funding for home-based applied behavior analysis (ABA), and additional evaluations of the student, including a functional behavioral assessment (FBA) and development of a behavioral intervention plan (BIP) (id.).
The parties proceeded to an impartial hearing. In a decision dated May 30, 2025, the IHO found that the district provided the student with a free appropriate public education (FAPE) and did not discriminate or retaliate in any manner that impeded the student's right to a FAPE and/or caused a deprivation of educational benefit or impeded the student's right to participate (IHO Decision at p. 34).[2] The IHO dismissed the parent's due process complaint notices in their entirety and denied the parent relief (id.).
IV. Appeal for State-Level Review
The parent appeals pro se, indicating the following "grounds for appeal":
1. Denial of Extension Violated Procedural Due Process
2. The IHO Should Have Recused Herself
3. Improper Deference to District Witnesses
4. Dismissal of Discrimination and Retaliation Claims Was Unfounded
5. Denial of ABA Reimbursement Was Arbitrary
6. Improper Dismissal of Evidence of Academic Regression
7. Procedural Violations Ignored.
The parent requests the following relief: complete reversal of the IHO's May 30, 2025 decision; that this matter be remanded to a different IHO; reimbursement for ABA therapy; independent educational evaluations (IEEs) that include an "FBA, BIP, cognitive testing;" a new IEP that recommends "small-group pull-out, ABA, and related supports;" and that findings be made that the district violated both the parent's and the student's rights under the IDEA, Family Educational Rights and Privacy Act (FERPA), and Americans with Disabilities Act (ADA). The parent further alleges that the matter be remanded before a new IHO because the parent was denied the opportunity to submit a closing brief "due to the IHO's failure to timely respond to a valid extension request, despite documented medical emergencies and [Health Insurance Portability and Accountability Act] HIPAA/FERPA-protected circumstances," as well as because the IHO demonstrated a pattern of bias, and failed to properly weigh evidence and testimony before her.[3]
The district has not submitted an answer in this matter.[4]
V. Discussion – Service of Pleadings
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]).
The parent, who is not represented, has submitted several groups of filings to this office, but, of note, the parent's initial filing on June 9, 2025 included a notice of intention to seek review dated June 6, 2025, and bore a date-stamp of June 6, 2025 at 12:38 p.m. Attached to the notice of intention to seek review was a two-page unverified request for review, dated June 6, 2025.[5] There was no verification included in this initial filing. A document titled: "Proof of Service – SRO Appeal," that was signed on June 6, 2025, was also included with this initial filing. The proof of service reflected that the parent affirmed under penalty of perjury that she "personally served the Notice of Intention to Seek Review and the Request for Review upon the Eastchester Union Free School District on June 4, 2025" with check marks indicating it was made by both personal delivery and by "email delivery." The proof of service also indicates that the pleadings were served via electronic mail to two specific email addresses.
Notably absent from the parent's proof of service is any indication as to who was personally served, which is in stark contrast to the specific email addresses that were included for the alleged attempt at serving the pleadings via electronic mail. Further, as discussed above, the district has not submitted an answer, much less an answer with any indication as to whether or not an individual was served who was designated to receive service by the board of education. The parent's proof of service fails to show that she personally served the district with the request for review in the manner required by State regulation, as did not indicate that personal service was made upon the district clerk, a trustee, the superintendent, or a 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]).[6]
Further, while the parent has indicated in her proof of service that the district was served with the unverified request for review by electronic mail, State regulations indicate that a verified request for review must be personally served. Although 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 within certain limits, there is no indication in this instance that the district agreed to accept service by delivery of the request for review through electronic mail, as opposed to personal service as required by State regulations.
Finally, as stated above, the request for review and notice of intention to seek review were both dated June 6, 2025.[7] However, the parent's proof of service indicates that these documents were served on June 4, 2025. This defect further lends to the uncertainty of proper service upon the district, as it is impossible to serve documents prior to their creation and finalization. Thus, for all of the reasons described above, the parent failed to initiate the appeal in accordance with the procedures prescribed in State regulations.[8] Under these circumstances, given the deficiencies in compliance with Part 279 and the defects in service on the district, the appeal must be dismissed.
VI. Conclusion
In accordance with the discussion above, I find that the parent's appeal must be dismissed for failure to properly initiate the appeal.
THE APPEAL IS DISMISSED.
[4] While the district has not submitted an answer, the district has nonetheless attempted to submit a motion to dismiss the parent's pro se request for review through a letter motion to dismiss dated July 21, 2025. I remind counsel for the district, who has appeared before this office many times over the course of more than 25 years, that such letter-motion practice are not permissible and, according to practice regulations, "[n]o pleading other than a request for review, answer, answer with cross-appeal, or answer to a cross-appeal, will be accepted or considered by a State Review Officer," with the exception of a reply under very specific circumstances (see 8 NYCRR 279.6 [emphasis added]; see also 8 NYCRR 279.8). I direct counsel for the district to review the State regulations that provide that a respondent may serve an answer or answer with cross-appeal to respond to a request for review, which must thereafter be filed with the Office of State Review (see 8 NYCRR 279.5[a], [c], [e]). The district's attorney is not permitted to violate the practice regulations by attempting to litigate an appeal through correspondence and, instead, if the district wishes to be heard, he must serve and file a pleading in order to raise procedural defenses. Here, the letters by the district's counsel are an impermissible attempt to evade the practice regulations of Part 279 and have not been considered. However, for the independent grounds stated later in this decision, the parent's appeal is nevertheless dismissed. Additionally, to the extent that the district's counsel has made a contingent request for an extension of its timeline, with the contingency being whether its improper letter motion was granted or denied, such request has been denied.
[1] The parent filed an initial due process complaint notice dated February 1, 2024, and then two subsequent "amendments," that largely supplemented the original due process complaint notice, which were construed to comprise one complete due process complaint notice (see generally, IHO Ex. XII).
[2] The IHO who ultimately presided over this matter and issued a decision, indicated in her decision that she was the third-appointed IHO (with her appointment being made on February 24, 2025), after two previously appointed IHOs recused themselves, and after 15 days of hearing dates had elapsed under previous IHOs (IHO Decision at p. 5).
[3] The parent submits additional evidence with her request for review. Generally, documentary evidence not presented at an impartial hearing may be 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]). The additional evidence submitted by the parent is not necessary in order to render a decision on this matter, and therefore will not be considered.
[5] The parent's pleadings failed to include a notice of request for review, as required (see 8 NYCRR 279.3).
[6] Circumstances surrounding receipt of the hearing record also leads to a conclusion that the district was not properly served. The Office of State Review received the parent's initial filing on June 9, 2025, but had not yet received a copy of the hearing record. Therefore, by letter to the district dated June 23, 2025, the Office of State Review noted the parent's filing, and directed the district to file a copy of the hearing record by June 26, 2025, absent a request for an extension of time. The district filed a copy of the hearing record, which was received by the Office of State Review on June 23, 2025.
[7] In addition to the defects above, a verification notarized on June 9, 2025 was filed with the Office of State Review on June 10, 2025, which could not have accompanied a request for review that was dated and purportedly served days earlier, and it is unclear if the verification was sent to the district at all or if it was merely filed with the Office of State Review. This is further noncompliant with the procedures for initiating an appeal.
[8] The Office of State Review's website includes a section dedicated to assisting pro se parents with drafting, serving, and filing appeals (see "Parent Guide to Appealing the Decision of an Impartial Hearing Officer" available at https://www.sro.nysed.gov/book/filing-request-review-section-i).
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[1] The parent filed an initial due process complaint notice dated February 1, 2024, and then two subsequent "amendments," that largely supplemented the original due process complaint notice, which were construed to comprise one complete due process complaint notice (see generally, IHO Ex. XII).
[2] The IHO who ultimately presided over this matter and issued a decision, indicated in her decision that she was the third-appointed IHO (with her appointment being made on February 24, 2025), after two previously appointed IHOs recused themselves, and after 15 days of hearing dates had elapsed under previous IHOs (IHO Decision at p. 5).
[3] The parent submits additional evidence with her request for review. Generally, documentary evidence not presented at an impartial hearing may be 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]). The additional evidence submitted by the parent is not necessary in order to render a decision on this matter, and therefore will not be considered.
[5] The parent's pleadings failed to include a notice of request for review, as required (see 8 NYCRR 279.3).
[6] Circumstances surrounding receipt of the hearing record also leads to a conclusion that the district was not properly served. The Office of State Review received the parent's initial filing on June 9, 2025, but had not yet received a copy of the hearing record. Therefore, by letter to the district dated June 23, 2025, the Office of State Review noted the parent's filing, and directed the district to file a copy of the hearing record by June 26, 2025, absent a request for an extension of time. The district filed a copy of the hearing record, which was received by the Office of State Review on June 23, 2025.
[7] In addition to the defects above, a verification notarized on June 9, 2025 was filed with the Office of State Review on June 10, 2025, which could not have accompanied a request for review that was dated and purportedly served days earlier, and it is unclear if the verification was sent to the district at all or if it was merely filed with the Office of State Review. This is further noncompliant with the procedures for initiating an appeal.
[8] The Office of State Review's website includes a section dedicated to assisting pro se parents with drafting, serving, and filing appeals (see "Parent Guide to Appealing the Decision of an Impartial Hearing Officer" available at https://www.sro.nysed.gov/book/filing-request-review-section-i).