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 found that it failed to offer an appropriate educational program to respondent's (the parent's) son and ordered it to reimburse the parent for her son's unilaterally-obtained special education itinerant teacher (SEIT) services delivered by Ed Achievers, LLC (Ed Achievers) for the 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[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 disposition of this matter, a full recitation of the student's educational history is not warranted.  Briefly, a CSE convened on May 17, 2023, and finding that the student remained eligible to receive special education as a student with a speech or language impairment, developed an IEP for the student for the 2023-24 school year with an implementation date of September 7, 2023 (see Dist. Ex. 5 at pp. 1, 19).[1]  The May 2023 CSE recommended that the student attend a general education placement with integrated co-teaching (ICT) services for instruction in English language arts (ELA), mathematics, sciences, and social studies, in addition to the following related services: one 30-minute session per week of individual counseling, two 30-minute sessions per week of individual occupational therapy (OT), and two 30-minute sessions per week of individual speech-language therapy (id. at pp. 13-14).

In an email sent to "CSE7" on May 1, 2024, the parent attached a completed district form which informed the district that she intended to parentally place the student in a nonpublic school at her own expense, and wanted the district to deliver the student's special education program to him at the nonpublic school (Parent Ex. H at pp. 1-2).  It appears that the parent signed the district form on May 1, 2024 (id. at p. 2).

On September 1, 2024, the parent signed a "Parent Service Contract" with Ed Achievers to deliver 10 hours per week of SEIT services to the student during the 2024-25 school year at a rate of $195.00 per hour (see Parent Ex. D at pp. 1-2).  According to the contract, Ed Achievers agreed to "make every effort to implement" the SEIT services with "qualified providers" for the 2024-25 school year (id. at p. 1).

By due process complaint notice dated December 30, 2024, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2024-25 school year (see Parent Ex. A at p. 1).

Evidence in the hearing record reflects that, on or about January 7, 2025, the parent secured a speech-language provider to deliver one 30-minute session per week of individual speech-language therapy to the student by completing a district related service authorization (RSA) form, which the district approved on January 14, 2025 (see generally Dist. Exs. 6-7).

On May 27, 2025, the parties proceeded to, and completed, an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. pp. 1-37).  In a decision dated October 29, 2025, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year and that the parent's unilaterally-obtained SEIT services (10 hours per week) were appropriate (see IHO Decision at pp. 4-6).  The IHO also found that equitable considerations weighed in favor of the parent's requested relief, and awarded district funding for the following services: 10 hours per week of SEIT (or special education teacher support services (SETSS)) at the rate of $195.00 per hour for a total of 360 hours, 18 hours of speech-language therapy services at a reasonable market rate to be determined by the district's implementation unit, and 36 hours of OT services at a reasonable market rate to be determined by the district's implementation unit (id. at pp. 7-8).

IV. Appeal for State-Level Review

The district appeals, arguing that the IHO erred by finding that the parent sustained her burden to establish the appropriateness of the unilaterally-obtained SEIT services delivered to the student by Ed Achievers during the 2024-25 school year.  Additionally, the district contends that the IHO erred by awarding any services to the student for the 2024-25 school year.  Alternatively, the district asserts that equitable considerations warrant a reduction in the hourly rate awarded, if at all, for the SEIT services delivered by Ed Achievers.  Finally, the district argues that the IHO erred by awarding compensatory educational services for OT and speech-language therapy services, as well as SEIT services, that were not delivered to the student during the 2024-25 school year.  As relief, the district seeks to reverse the IHO's findings and relief awarded, or alternatively, to reduce the hourly rates awarded for SEIT, OT, and speech-language therapy services.

The parent did not respond to the district's allegations in an answer or other pleading.

V. Discussion—Service of Pleadings

As a threshold matter, it must be determined whether the appeal should be dismissed due to the district's failure to effectuate proper 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, the parent has not responded to the district's request for review.  A review of the district's papers reveals several irregularities.  For example, the district's request for review included an attached, one-page document identified as a "Verified Request for Review" and dated December 9, 2025; however, upon inspection, the document appears to be an affirmation or declaration of service, as it mirrors some of the language reflected in another document filed with the Office of State Review, identified as a "Declaration of Service" and dated December 9, 2025, purportedly related to the service of the district's notice of intention to seek review (compare Dec. 9, 2025 Dist. Verified Req. for Rev., with Dec. 9, 2025 Dist. Decl. of Serv.).  It should be noted, however, that the district failed to file the notice of intention to seek review with the Office of State Review.[2]

According to the district's declaration of service related to the missing notice of intention to seek review, a district attorney (who differed from the district representative who signed the request for review) served the notice of intention to seek review upon the parent, via electronic mail, on November 17, 2025, after receiving the parent's consent to service by email on November 17, 2025 (see Dec. 9, 2025 Dist. Decl. of Serv.).  Additionally, the attorney noted that a "copy of the email exchange [wa]s included for reference and proof" (id.).  Notably, however, the purported email exchange documenting the parent's consent to service by email was not included with the declaration of service filed with the Office of State Review; as a result, it is unclear exactly what documents the parent consented to receiving via email (just the notice of intention or all pleadings, including a request for review) or whether the parent understood that she was waiving personal service of the filed pleadings.  Additionally, without the email exchange submitted into the hearing record, it cannot be confirmed whether or not the email identified in the affidavit of service was the same email that the parent responded to as part of the email exchange.

Turning to the December 9, 2025 document attached to the request for review, a review thereof reflects that a different attorney for the district declared that the notice of request for review, the request for review, and the verification, "dated October 8, 2025," had been served "upon Respondents Counsel, by electronic mail to" an email address that appears to be the parent's email address on December 8, 2025 (Dec. 9, 2025 Dist. Verified Req. for Rev.).[3]  According to this document, on November 17, 2025, "Respondent confirmed to the [district] that Respondent authorize[d] waiver of personal service and accept[ed] service of documents in this proceeding by electronic mail" (id.).  However, this statement is broader than the statement made in the declaration of services of the notice of intention to seek review, which could have been read as limiting the discussion to the notice of intention.  Given these discrepancies, it is unclear who the district served with the request for review and whether the parent waived personal service of this pleading or authorized an attorney or lay advocate to accept service on her behalf.

As has been noted in previous decisions, SROs have grown increasingly concerned with the lack of involvement of parties in the formalities of initiating an appeal and the lack of adherence to the procedural protections envisioned by Part 279 (see, e.g., Application of the Dep't of Educ., Appeal No. 25-455).  Other than the summary of an email exchange regarding the parent's alleged consent to electronic service, there is no indication that the parent, who is the respondent in this proceeding, agreed to waive personal service or specifically consented to an attorney or a lay advocate accepting service of the request for review on her behalf (see Dec. 9, 2025 Dist. Verified Req. for Rev.; Dec. 9, 2025 Decl. of Serv.).  Neither the parent nor any other representative for the parent has appeared in this matter.

Given the description in the district's mislabeled 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 information to establish that the parent did in fact agree to waive personal service of the request for review in this matter (see 8 NYCRR 279.4[c] [emphasis added]).

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 that the parent agreed to accept service of the request for review and supporting documents by electronic mail.  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 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 mislabeled declaration of service of the request for review does not indicate who the district actually served the request for review on, as it indicates service was made on respondent's counsel but provides the same email address for the parent, as was provided in the declaration of service of the notice of intention to seek review.  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 alternative 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 service on the parent, who has not appeared in this matter, the appeal must be dismissed as the submitted proof of service of the request for review, on its own, does not support finding that the parent was properly served.

VII. Conclusion

In accordance with the discussion above, the district's appeal must be dismissed for failure to properly initiate the appeal.

THE APPEAL IS DISMISSED.