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 the decision of an impartial hearing officer (IHO) which ordered it to reimburse respondent (the parent) for the costs of her son's unilaterally obtained special education teacher support services (SETSS) delivered by Always a Step Ahead, Inc. (Step Ahead) for the 2024-25 school year and ordered the district to fund compensatory educational services for the student.  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[a]).  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 January 4, 2024, found the student eligible for special education as a student with an other health impairment, and developed an IESP for the student that recommended the student receive five periods per week of SETSS in a group and two 30-minute sessions per week of individual occupational therapy (OT) (see Parent Ex. B at pp. 1, 7).  On May 9, 2024, the parent executed a district form, within which the parent informed the district that the student would be parentally placed in a nonpublic school at her own expense, and she wanted the district to provide the student with special education services for the 2023-24 school year (see Parent Ex. D at p. 1).  The notice indicated that the parent had "not received any notice that the [district] w[ould] be providing providers for [the student's] services" and therefore, the parent was "advising that [she was] in the process of searching for [her] own providers to ensure" that the student received services (id.).  It was further noted that, if the district did "not provide providers," the parent would be "requesting that the [district] fund the providers" she secured (id.).  Based on the evidence in the hearing record, it appears that the student began receiving SETSS on September 17, 2024 for the 2024-25 school year (see Parent Ex. H at p. 1; see generally Parent Ex. I).

Thereafter, on or about December 8, 2024, the parent electronically executed a document with Step Ahead, which indicated that the parent was "aware that the rate" for SETSS was $200.00 per hour and $250.00 per hour for related services, and if the district did not fund the services, she would be "liable to pay for them" (Parent Ex. E at pp. 1-2).  In addition, the Step Ahead document reflected that the "services being provided to [the student we]re consistent with those listed" in the student's January 2024 IESP (id. at p. 1).  According to the document, the parent agreed that, if the student's services increased or decreased after the "signed date," then those services were "agreed upon as well" (id.).  The document further indicated that the document memorialized the "agreement" between the parent and Step Ahead for the delivery of services to the student for the entire 2024-25 school year (id.).

By due process complaint notice dated January 15, 2025, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) and "equitable services" for the 2024-25 school year (Parent Ex. A at p. 1).[1]  Initially, the parent indicated that the January 2024 IESP was the last program developed for the student, and the IESP included "sufficient and adequate services" to address the student's "academic, social and emotional issues"; the IESP would "enable the student to receive meaningful education benefits"; and the IESP offered the student an "appropriate education" (id.).  The parent sought an order that "would make the IESP and the services recommended therein the [s]tudent's educational program for the 2024-2025 school year" (id.).

Next, the parent indicated that she had not "received any other educational program other than the IESP," and the district had not assigned any providers to deliver the services on the January 2024 IESP to the student for the 2024-25 school year (Parent Ex. A at p. 1).

As relief, the parent requested an impartial hearing to establish the student's pendency services, and to issue an order "awarding all services recommended in the IESP for the entire 2024-2025 school year (Parent Ex. A at p. 2).  The parent also sought an order allowing funding to pay the student's providers or agencies for the delivery of services set forth in the IESP, "or awarded on any other basis, for the entire 2024-2025 school year at the full rate each provider or agency charge[d] even if higher than the [district] standard rate" (id.).  In addition, the parent sought compensatory educational services based on the district's failure to provide services to the student (id.).

On April 1, 2025, the parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH), which concluded on April 25, 2025, after two days of proceedings (see Tr. pp. 1-50).  In a decision dated June 25, 2025, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year by failing to deliver the student's services, the parent's unilaterally obtained SETSS were appropriate for the student, and the district failed to establish that the contracted hourly rate for SETSS was unreasonable, and awarded the parent a bank of 36 hours of OT as compensatory educational services (see IHO Decision at pp. 3-5).  The IHO ordered the district to fund the student's SETSS (five periods per week) at a rate of $200.00 per hour and to fund the compensatory OT services (id. at p. 6).

IV. Appeal for State-Level Review

The district appeals, alleging that the IHO erred by finding that the parent sustained her burden to establish the appropriateness of the unilaterally-obtained SETSS under the totality of circumstances.  The district also argues that the IHO erred by ordering pendency for a parentally-placed student.  The district further argues that the IHO erred by failing to reduce the hourly rate awarded for SETSS.

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

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, the district served the request for review by electronic mail on August 4, 2025, upon the attorney whose law firm represented the parent during the impartial hearing (see Dist. Decl. of Serv.).  Although the district states in its declaration of service that the attorney "waived personal service and agreed to accept service" via electronic mail on the parent's behalf, the district does not indicate that the parent agreed to waive personal service (id.).

The parent has not appeared in this matter; nor has an attorney appeared on the parent's behalf.

Given the description in the district's declaration of service, the district did not serve the parent with the request for review in the manner required by State regulation, as personal service on the parent was not made, and there is insufficient statement that 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 this instance that the parent agreed to accept service of the request for review and supporting documents by electronic mail to the attorney identified in the district's declaration of service.  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]).  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 confirmation of the parent's awareness of the attorney'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. 25-331 [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 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.