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, pursuant to section 8 NYCRR 279.10(d) of the Regulations of the Commissioner of Education, from an interim decision of an impartial hearing officer (IHO) determining respondent's (the parent's) son's pendency placement during a due process proceeding challenging the appropriateness of the district's recommended educational program for the student for the 12-month 2024-25 school year.  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 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, 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

The student has been the subject of a prior State-level administrative appeal (see Application of a Student with a Disability, Appeal No. 24-486).  The parties' familiarity with this matter is presumed, and, therefore, the facts and procedural history of this case and the IHO's interim decision will not be recited in detail.

In a due process complaint notice dated June 12, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 12-month 2024-25 school year (Due Process Compl. Not. at p. 1).  Specifically, the parent asserted that the district failed to appropriately evaluate the student, failed to recommend an appropriate special class size and related services, and failed to recommend an appropriate assigned school site (id. at pp. 5, 6-7).  The parent also alleged that her unilateral placement of the student at the International Academy of the Brain (iBrain) was appropriate and that equitable considerations warranted an award of full funding for the cost of the student's attendance at iBrain (id. at pp. 8-9).  The parent invoked the student's right to pendency, requested a pendency hearing, and asserted that the student's attendance at iBrain constituted his pendency services as the operative placement (Due Process Compl. Not. at pp. 2, 9; see Due Process Compl. Not. Ex. B).  As relief, the parent requested full funding for the cost of the student's attendance at iBrain for the 12-month 2024-25 school year (Due Process Compl. Not. at p. 9).

In a due process response, dated June 17, 2025, the district denied the parent's allegations and notified the parent of its intent to raise various defenses (see generally Due Process Response).

An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter.  On July 14, 2025, the parties appeared before the IHO for a prehearing conference (Tr. pp. 1-13).  During the prehearing conference, the IHO noted that the parent had made a request for pendency and acknowledged receipt of documents from the parent in support of her position on pendency (Tr. p. 4).  The IHO also indicated that the district had been given a date certain to respond to the parent's position on pendency, however, on June 25, 2025, the district had made a written motion to dismiss the parent's due process complaint notice on the ground of res judicata (Tr. p. 4; see Dist. Mot. to Dismiss).  The IHO further stated that she wanted to address the district's motion to dismiss prior to addressing the parent's request for pendency (Tr. p. 4).  When asked to clarify whether she intended to rule on the district's motion to dismiss prior to scheduling a pendency hearing, the IHO stated that she "usually just d[id] pendency on the papers" and that she would set a deadline for the district to state its position on pendency (Tr. p. 11).

In an interim decision on pendency dated July 30, 2025, the IHO determined that the student's pendency services were based on an unappealed SRO decision (see Application of a Student with a Disability, Appeal No. 24-486) (Interim IHO Decision).  The IHO found that the student's pendency consisted of direct funding of tuition costs for 12-month services at iBrain, along with direct funding to Sisters Travel and Transportation Services, LLC for the cost of the student's transportation services, and direct payment to Park Avenue Home Care for the cost of the student's individual nursing services (id.).

IV. Appeal for State-Level Review

The district appeals and alleges that the IHO erred in determining that the student's enrollment at iBrain along with transportation and nursing services constituted the student's pendency entitlement.  As relief, the district requests that the IHO's interim decision be annulled.[1]

The parent has not interposed 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, on September 8, 2025, the district electronically served the request for review by sending an email to a general mailbox at the law office of the parent's attorney and by sending an email to the attorney who represented the parent during the impartial hearing (see Dist. Decl. of Serv.).  The declaration of service further indicates that the "parties agreed to accept service via email of pleadings in this case on" August 8, 2025 (see Dist. Decl. of Serv.).  Notwithstanding the agreement described in the declaration of service, the district did not indicate that they inquired or were informed as to whether the parent agreed to waive personal service (id.).  The parent has not appeared in this appeal; nor has an attorney or lay advocate appeared on the parent's behalf.

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 as required by State regulation, as the affidavit 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 via electronic mail.  Further, the declaration does not indicate that the parent agreed to accept service of the request for review.  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 any 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. 25-471 [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]).

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 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.