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) daughter and ordered it to reimburse the parent for her daughter's private services delivered by EdZone, LLC (EdZone) for the 2023-24 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 June 16, 2022 to develop an IESP for the student for the 2022-23 school year (Parent Ex. B at p. 1).  The June 2022 IESP reflected that, at that time, the student was "parentally placed in a private school" (id. at p. 1).  The June 2022 CSE found the student eligible for special education as a student with an other health impairment and recommended the student receive four periods per week of group special education teacher support services (SETSS), two 30-minute sessions per week of group occupational therapy (OT), and the provision of a tablet for use as needed (id. at pp. 1, 7).[1]^, [2]

By letter dated May 16, 2023, the parent informed the district that she intended to place the student in a nonpublic school at her own expense and wanted the district to provide special education services to the student for the 2023-24 school year (Parent Ex. E at p. 1).  In an August 23, 2023 letter, the parent advised the district that it had failed to assign a provider to deliver the student's services and that, if the district did not "fulfill the mandate," the parent would be compelled "to unilaterally obtain the mandated services through a private agency at an enhanced market rate" (Parent Ex. D).  On September 7, 2023, the parent entered into an agreement with EdZone for the provision of services "in accordance with the last agreed upon [IESP]" during the 2023-24 school year (Parent Ex. C).

In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to convene a CSE to engage in educational planning for the 2023-24 school year and in failing to implement the student's special education services (Parent Ex. A at pp. 1-3).[3]  As relief, the parent sought funding for private SETSS and OT at the "enhanced rate set by the provider for the 2023-2024 school year" and compensatory education for services not provided (id. at p. 3).

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 23, 2025 (Tr. pp. 1-39).  In a decision dated June 16, 2025, the IHO found that the district denied the student a FAPE for the 2023-24 school year by failing to deliver the student's services (IHO Decision at p. 12).  The IHO found that the relief sought by the parent was more appropriately examined as compensatory education, but also found that, under a Burlington/Carter analysis, the parent met her burden to prove that the unilaterally obtained SETSS were appropriate for the student, and that equitable considerations did not warrant a reduction or denial of an award to the parent (id. at pp. 6-13).  The IHO awarded the parent reimbursement or direct funding for SETSS obtained for the student for the 2023-24 school year (see id. at p. 13).

IV. Appeal for State-Level Review

The district appeals, alleging that the IHO erred in applying a compensatory education standard instead of a Burlington/Carter standard, erred in finding that the parent had met her burden of demonstrating the appropriateness of the unilaterally obtained services, erred in failing to dismiss the parent's due process complaint notice for lack of a timely June 1 notice, and erred in awarding services at an enhanced rate.

The parent has not submitted an answer; however, a request for an extension of time to answer the request for review was submitted by the individual who had signed the due process complaint notice on behalf of an agency.

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 on July 28, 2025 on an email address that appears to be associated with the agency that submitted the due process complaint notice on the parent's behalf (see Dist. Decl. of Serv.; see Parent Ex. A).  Although the district states in its declaration of service that the "Respondents" agreed to accept service via electronic mail, the district does specifically identify any individual who agreed to accept service, the district does not include a copy of any correspondence regarding an agreement to accept service, nor does the district explain how the district selected the e-mail address as a method of service (see id.).  The parent has not submitted an in this matter, although the individual who signed the due process complaint notice on behalf of the parent (lay advocate) did submit a request for an extension of time to answer the request for review.

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 an 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 lay advocate identified in the district's declaration of service.  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, as in this case, a 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 lay advocate confirmation of the parent's awareness of the advocate'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]).

Turning to the request for an extension of time to answer that was submitted by a lay advocate in this matter, while an informal appearance may constitute a waiver of personal jurisdiction in State court (see Taveras v. City of New York, 108 A.D.3d 614, 617-18 [2d Dep't 2013] [counsel's statements confirming that counsel was appearing on defendants' behalf constituted an informal appearance on their behalf"]), the regulations governing practice before the Office of State Review do not specifically require that personal defenses such as a lack of personal jurisdiction be raised at the time a request for an extension of time to answer is made (see 8 NYCRR 279.5, 279.10[e]).

In this instance, the lay advocate requested an extension of time to submit an answer in this matter indicating that the reason for the extension was that "[t]he parent need[ed] time to write the appeal"; however, there is no statement in the request for an extension of time that the lay advocate was appearing on behalf of the parent or that he forwarded the request for review to the parent.  Additionally, as noted above, the request for an extension of time indicated that the parent was going to write the answer, and an answer was never submitted.  Accordingly, without a specific affirmative representation that the lay advocate was appearing as a representative of the parent or on behalf of the parent, the request is insufficient to establish a waiver of personal jurisdiction.

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 a 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 a 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.

VI. Conclusion

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

THE APPEAL IS DISMISSED.