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 denied her request to be reimbursed for her son's private services delivered by a self-employed speech-language pathologist for the 2024-25 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 disposition of this matter on procedural grounds, a detailed recitation of the facts and procedural history is not necessary.  Briefly, a CSE convened on October 24, 2023 and developed an IESP for the student with a projected implementation date of November 7, 2023 (Parent Ex. C).  After finding the student eligible for special education services as a student with a speech or language impairment, the October 2023 CSE recommended that the student receive one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, and one 30-minute session per week of group counseling services (id. at pp. 1, 7).[1]

In a letter, signed by the parent on May 14, 2024, and sent via electronic mail from the student's nonpublic school to the district on May 30, 2024, the parent notified the district that she placed the student in a nonpublic school at her expense and asked the district to provide the student's special education services for the 2024-25 school year (Parent Ex. G).

By letter dated August 26, 2024, the parent notified the district that the student did not have a speech provider, and that she located "an enhanced rate provider" to provide the student's services, which would begin on September 5, 2024 (Parent Ex. F).  The parent indicated that she would be filing a due process complaint notice in order to obtain funding for the services from the privately-obtained provider, and that the letter was to serve as a 10-day notice (id.).

On September 5, 2024, the parent entered into an agreement with a private speech-language provider to provide two 30-minute sessions per week of speech-language therapy to the student at a rate of $150 per session for the 2024-25 school year, to begin on the same date as the agreement (Parent Ex. J at p. 1).

A CSE reconvened on October 7, 2024, and, continuing to find the student eligible for special education services as a student with a speech or language impairment, developed an IESP with a projected implementation date of October 21, 2024 (Parent Ex. H).[2]  The October 2024 IESP included recommendations that the student receive group speech-language therapy for three 30-minute sessions per week, and one group counseling session for 30-minutes per week (id. at pp. 7-8).

In a due process complaint notice dated October 9, 2024, the parent, through a lay advocate, alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A).  The parent alleged that for the 2024-25 school year, the student required the same services as recommended in the October 2023 IESP and the district failed to implement the recommended services (id. at p. 1).  The parent further indicated that she was forced to find a private provider for the student's speech-language services for the 2024-25 school year (id.).  As relief, the parent sought an order directing the district to continue the student's special education program pursuant to pendency, as well as  district funding for speech-language therapy services for the entire 10-month 2024-25 school year at the contracted for rate (id. at p. 2).

On October 10, 2024, the parent entered into a second agreement with the same private speech-language provider discussed above, for three 30-minute sessions of speech-language therapy per week at a rate of $150 per 30-minute session, to be provided to the student for the 2024-25 school year beginning on October 21, 2024 (Parent Ex. J at p. 2).

An impartial hearing convened and concluded before the Office of Administrative Trials and Hearings (OATH) on March 27, 2025 (Tr. pp. 1-24).  In a decision dated March 28, 2025, the IHO found that the district failed to meet its burden to establish that the student was provided with a FAPE for the 2024-25 school year, and then found that there was insufficient evidence to support finding that the parent's privately obtained speech services were specially designed to address the student's needs for the 2024-25 school year (IHO Decision at pp. 5-6).  The IHO thereby denied the parent's request for reimbursement or direct funding of speech-language therapy services (id.).  The IHO further found, in the alternative, that, if the parent had established that the privately obtained speech services were appropriate, equitable considerations would have warranted a reduction of the amount awarded because the rate for the speech-language services was "unsubstantiated and excessive" (id. at p. 6).  The IHO would have reduced the rate from $300 per hour to $150 per hour (id.).  The IHO additionally denied the parent's request for compensatory education services (id. at pp. 7-8).  The IHO noted that the parent had a responsibility to identify the specific remedy she was seeking and that, as the parent "requested 'compensatory time at the at the contracted rate for services,'" the IHO found that the parent failed to establish an compensatory award that would address any academic deficit created by the district's failure to offer the student a FAPE for the 2024-25 school year (id. at p. 8).  The IHO awarded the parent relief pursuant to pendency and, specifically, ordered the district to fund the student's speech-language services for the 10-month 2024-25 school year, based on the recommendations in the student's October 2023 IESP from the date of filing of the due process complaint notice (id. at p. 8).

IV. Appeal for State-Level Review

The parent appeals, alleging, among other things, that the IHO erred in placing a burden on the parent to demonstrate "methodologies of assessment" and in finding that there was insufficient evidence that the privately-obtained provider delivered appropriate speech-language therapy services to the student.  More specifically, the parent alleges that the IHO erred by not waiting to issue the decision until after the hearing transcript was produced, that the provider was properly licensed and qualified to deliver the student's speech-language services, that the provider's progress report showed she delivered services in line with the annual goals included on the student's IESP, and that the district relied on the same provider's progress report from the prior school year to develop the student's IESP for the 2024-25 school year.  Finally, the parent asserts that the IHO improperly found, in the alternative, that a reduction of the provider's rate would have been warranted.  The parent seeks reversal of the IHO decision and full payment to the privately-obtained provider at the contracted for rate.

In an answer, the district initially contends that this matter should be dismissed for the parent's alleged failure to comply with practice regulations.  The district alleges that the parent failed to serve the district with a signed and notarized verification, as required.  In the alternative, the district contends that the IHO decision should be affirmed.  Specifically, the district contends that the parent did not sufficiently meet her burden to establish the appropriateness of the services delivered by the private speech-language provider as the progress report did not identify the student's progress over the course of the year or whether the student achieved any of his goals and there was no evidence of the instruction the student received in his general education classroom, making it impossible to ascertain whether the services obtained enabled the student to access the curriculum.  The district further contends that equitable considerations warranted a reduction in any potential award to the parent, as the IHO indicated, because the parent failed to adhere to 10-day notice provisions by failing to include an address of the recipient, a name of a specific recipient, or other proof that the letter was sent.  Additionally, the district alleges that the letter was insufficient as it was dated August 26, 2024 and the student began receiving private speech-language services on September 5, 2024.  The district also contends that the IHO correctly found the private provider's rate to be excessive.  Further, the district contends that the parent failed to appeal the IHO's decision with respect to compensatory education services for counseling services, thereby making that determination final and binding.

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[3]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[4]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

VI. Discussion – Service of Pleadings

As a threshold matter, it must be determined whether the parent's appeal should be dismissed for failure to comply with State regulations governing appeals before the Office of State Review.

An appeal from an IHO's decision to an SRO must be initiated by timely personal service of a notice of request for review and a verified request for review and other supporting documents upon a respondent (8 NYCRR 279.4[a]).  A request for review must be personally served within 40 days after the date of the IHO's decision to be reviewed (id.).  A request for review must be personally served within 40 days after the date of the IHO's decision to be reviewed (id.). If the last day for service of any pleading or paper falls on a Saturday or Sunday, service may be made on the following Monday; if the last day for such service falls on a legal holiday, service may be made on the following business day (8 NYCRR 279.11[b]). State regulation provides an SRO with the authority to dismiss sua sponte an untimely request for review (8 NYCRR 279.13; see e.g., Application of the Board of Educ., Appeal No. 17-100 [dismissing a district's appeal for failure to timely effectuate personal service on the parent]; Application of a Student with a Disability, Appeal No. 16-014 [dismissing a parent's appeal for failure to effectuate service in a timely manner]).

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]).

Here, the parent failed to initiate the appeal in accordance with practice regulations.

The request for review and the affidavit of service attached to the request for review have several discrepancies which call into question whether required pleadings were served on the district.

Initially, there are two documents filed together which each bear the title of being a "request for review."  The first, is a two-page document bearing the parent's signature, and the second, is a five-page document, with the parent's name type-written at the end, with both documents dated May 6, 2025.  While the district concedes in its answer that it was served with a request for review, it is unclear which request for review was served on the district, or if both were served on the district.  Additionally, while the request for review filed with the Office of State Review (OSR) included an affidavit of verification, the district asserts in its answer that the document delivered to the district did not include a verification.  Accordingly, it appears as though, at the very least, the parent filed documents with OSR, such as the verification, that were not served on the district.

Turning to the "Affidavit of Personal Service" attached to the request for review, the affidavit indicates that the parent "emailed the annexed Notice of Intent to Appeal" to the district through two distinct email addresses.

Initially, the OSR website specifically advises parties that "[t]he Affidavit of Service must be signed by the person who served the school district with the documents in front of a notary public" (Overview to Part 279: Filing a Review for Review (Section I): Serve and File the Request for Review, available at https://www.sro.nysed.gov/book/serve-and-file-request-review).  However, in this instance, while the affidavit of service reflects that the parent effected service via electronic mail on the district, the emails attached to the affidavit of service indicate that the individual who attempted to notarize the affidavit is the one who sent the papers to the district via electronic mail, not the parent, thus calling into question the accuracy of the information included in the affidavit of service.[5]

Most notable, is that the affidavit of service only indicates that a "Notice of Intent to Appeal" was served, without any indication that any other documents were served on the district.  As noted on the OSR website, an affidavit of service "must specifically describe. . . [w]hat papers were delivered" (Overview to Part 279: Filing a Review for Review (Section I): Serve and File the Request for Review, available at https://www.sro.nysed.gov/book/serve-and-file-request-review).  Here, there is no mention in the affidavit of service of a verified request for review, or any pleadings other than a notice of intent to appeal.  More specifically, there is no indication that a request for review or verification was served on the district, nor any indication as to which of the two requests for review filed with the OSR were served on the district.

Of particular note, the affidavit of service attached to the request for review is identical in substance, if it is not also the exact same document, as the affidavit of service attached to the parent's notice of intention to seek review.  A notice of intention to seek review is generally served prior to a request for review, with parties having 25 days after the date of the IHO decision sought to be reviewed to personally serve a notice of intention to seek review and 40 days after the date of the IHO decision to personally serve the request for review (8 NYCRR 279.2, 279.4).  Although the regulations do not prohibit the service of both pleadings on the same day, the affidavits of service should specifically identify what was served and as the parent's affidavit of service in this matter only indicates "Notice of Intent to Appeal" it is insufficient on its face to establish that a request for review was served on the district.

While the district concedes in its answer that a request for review was received by the district, the district alleges that a verification related to that request for review was never served on the district.  There has been no reply filed by the parent that addresses this procedural contention by the district, as would have been permitted under State regulation (see 8 NYCRR 279.6 [a]­).  Therefore, considering the issues regarding the parent's pleadings, verification, and affidavit of service noted above, and further considering that there is no evidence a verified request for review has been served on the district, and absent any indication in the hearing record or explanation in the pleadings as to the issues presented or any dispute from the parent on the lack of verification as raised by the district, this matter should be dismissed due to the parent's failure to submit sufficient evidence that she properly initiated an appeal by f effectuating proper service of a verified request for review on the district (see Appeal of Acosta, 54 Ed Dep’t Rep., Decision No. 16,782 [2015] [dismissing a petition where the verification was not included with papers served on respondent], available at https://www.counsel.nysed.gov/Decisions/volume54/d16782).[6]

In this instance, given the deficiencies in service and failure to conform to practice regulations, the appeal must be dismissed.

VII. 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.