STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-516
Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability
Appearances:
Liz Vladeck, General Counsel, attorneys for petitioner, by James Coughlin, Esq.
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 ordered it to directly fund the student's privately-obtained special education teacher support services (SETSS) for the 2024-25 school year together with a bank of compensatory education services.[1] 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 April 2, 2023, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP for the student with an implementation date of April 25, 2023 that recommended the student receive three 30-minute sessions per week of group SETSS, two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual occupational therapy (OT) (Parent Ex. B at pp. 8-9).[2], [3]
On May 30, 2024, the parent (respondent) signed a letter provided by the district informing it that she had placed the student in a nonpublic school at her own expense and wanted the district to provide special education services to the student for the 2024-25 school year (Parent Ex. D). In a letter dated September 2, 2024, the parent advised the district that it had failed to take any action to implement the SETSS and related services recommended to the student for the upcoming 2024-25 school year and that the parent planned to pursue her due process rights and file a due process complaint notice (Parent Ex. F). The parent asserted that with the filing of the due process complaint notice, the student would be entitled to services under pendency and further that if the district failed to implement the services, she would be forced to contract with private entities to provide those services at public expense (id.).
On September 16, 2024, the parent entered into a "Service Agreement" with Kinship Resources (Kinship) for the provision of SETSS and/or related services and supports to the student during the 2024-25 school year that were included in the student's IESP or that were mandated under pendency (Parent Ex. H).
On November 6, 2024, the CSE reconvened, found that the student continued to be eligible for special education as a student with a speech or language impairment, and developed an IESP for the student with an implementation date of November 20, 2024 that recommended the student receive three 30-minute sessions per week of group SETSS and two 30-minute sessions per week of individual speech-language therapy (Parent Ex. C at pp. 7-8).
A. Due Process Complaint Notice
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 2024-25 school year by failing to develop an updated program of services for the student (Parent Ex. A at p. 1). For relief, the student requested an order directing the district to fund the services recommended in the April 2023 IESP and compelling the district to provide a bank of compensatory education services for each service previously mandated by the CSE but not provided to the student during the 2024-25 school year (id. at p. 2). The district filed a due process response generally denying the allegations set forth in the due process complaint notice and indicating its intent to assert multiple affirmative defenses.
B. Impartial Hearing Officer Decision
An impartial hearing convened and concluded before an IHO with the Office of Administrative Trials and Hearings (OATH) on February 24, 2025. In a decision dated July 10, 2025, the IHO found that the district denied the student a FAPE for the 2024-25 school year by failing to provide the student with the services set forth in her IESPs; the parent's privately-obtained services were appropriate for the student; and the district did not prove that equitable considerations warranted reducing or denying the hourly rate charged by Kinship (see IHO Decision). The IHO directed the district to directly fund the SETSS provided by Kinship to the student during the 2024-25 school year at a rate not to exceed $195 an hour, together with a bank of compensatory OT and speech language therapy services that were recommended but not provided to the student during the 2024-25 school year at an hourly rate to be decided by the district's implementation unit (id. at p.10).[4]
IV. Appeal for State-Level Review
The district appeals, alleging in pertinent part that the IHO erred in ordering the district to fund the SETSS provided by Kinship to the student during the 2024-25 school year, failing to reduce the Kinship hourly rate, and directing the district to fund a bank of compensatory OT and speech language therapy services that were mandated but not provided to the student during the 2024-25 school year.[5]
The parent has not submitted a verified answer.
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 of 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 upon a lay advocate by electronic mail on August 19, 2025 (see Dist. Decl. of Serv.). Although the district states in its declaration of service that the lay advocate agreed to accept petitioner's papers on respondent's behalf and that the lay advocate waived personal service and agreed to accept service by electronic mail on respondent's behalf, the district does not indicate that the parent agreed to waive personal service (see id.). The parent has not appeared in this matter; nor has an attorney or lay advocate filed a responsive pleading on the parent's behalf.[6]
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 no 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 athttps://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]).
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 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
Footnotes
[1] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[2] The hearing record contains duplicate copies of the student's IESPs as both parties submitted them into evidence (see Parent Exs. B; C; Dist. Exs. 3; 4). For purposes of this decision, when referencing an IESP, only the parent's exhibit will be cited. The IHO is reminded that it is his responsibility to exclude evidence that he determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[3] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[4] While the Kinship service agreement indicated that it would provide the student with SETSS and/or related services that were included in the student's IESP or that were mandated under pendency during the 2024-25 school year, the Kinship administrator testified at the impartial hearing that the parent only requested that Kinship provide SETSS (compare Tr. p. 14, with Parent Ex. H).
[5] The district's argument that the IHO's erred in directing it to fund the SETSS provided by Kinship because "[n]o evidence was presented to demonstrate that Kinship 'SETSS' are similar to [the district's] SETSS" is particularly concerning when the district acknowledges that it is not defined in the States continuum of services and merely asserts that the "district is aware of what SETSS entails." That failure to define terms and support them with evidence is a burden of production issue has been pointed out by SROs time after time, and likely represents no less, and perhaps more, of an issue for the district than it does for parents.
[6] The lay advocate requested an extension of time to submit an answer and then failed to file a responsive pleading at all, much less one verified by the parent. After being reminded to include her own contact information in correspondence and later pressed to report back on the status of the matter, the lay advocate ultimately wrote a letter to the Office of State Review that she would not respond to the district's appeal on the parent's behalf. In both those correspondences, the parent was not so much as copied and there is no indication that the parent is aware of the district's appeal or, more specifically, authorized the lay advocate to appear and accept service of process on the parent's behalf.