STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-069
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
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 that respondent (the district) fund the costs of her son's private services for the 2025-26 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
As an initial matter, I note that no hearing record was filed with the Office of State Review in this matter. On January 20, 2026, the Office of State Review received email correspondence from the parent, dated December 23, 2025 and January 5, 2026, attaching a notice of intention to seek review; a request for review dated December 23, 2025 and verified January 16, 2026; and an affidavit of personal service for the "Notice of Request for Review, Request for Review and Affidavit of Verification on CSE7," sworn to on January 16, 2026. The parent did not file the notice of intention to seek review with the Office of State Review. The district did not file the hearing record, an answer, or seek an extension of time to submit an answer in this matter and there is otherwise no indication that the district was served with the parent's request for review. Accordingly, the information in this proceeding consists solely of the aforementioned documents.
According to the parent, the student is 17 years old, attends a nonpublic school, and has been deemed eligible for special education as a student with a disability (see Req. for Rev. at pp. 2-3). The parent asserts that, on April 28, 2025, a CSE convened and developed an IESP for the student that recommended five periods per week of bilingual special education teacher support services (SETSS) in Yiddish (id. at p. 2). The parent alleges that the district failed to implement the student's SETSS, which resulted in the parent selecting and obtaining a provider for the student's services (id. at pp. 2-3).
According to the parent, the parent and district proceeded to a hearing before an IHO, who issued a decision on December 10, 2025 (Req. for Rev. at p. 3). The IHO's decision denied the parent's request for direct funding for the privately obtained services, awarded a partial compensatory bank of SETSS hours, directed the district to attempt to locate a provider within thirty days, and prohibited the parent from using the privately obtained provider identified in the record (id. at pp. 4-8).
IV. Appeal for State-Level Review
The parent appeals from the IHO's decision and contends that the IHO applied "an unduly rigid and legally unsupported evidentiary standard" because, rather than evaluating the totality of the evidence, the IHO "faulted the [p]arent for not producing specific categories of documentation and treated the absence of those materials as dispositive." In addition, the parent argues that the IHO improperly discounted the student's progress report; based her equitable considerations analysis on unsupported speculation about possible collusion with the provider; and issued a "remedial order" that is legally inadequate and incapable of curing the denial of FAPE because it provides the district with another opportunity to attempt compliance during an additional period where the student may continue to receive no mandated services. The parent further alleges that the IHO exceeded her authority by prohibiting the parent's chosen provider from delivering the student's SETSS; authorized the continued deprivation and non-implementation of services despite finding a denial of FAPE; impermissibly shifted the burden on the parent to "seek another provider if the [district] again failed to locate one"; and failed to authorize an enhanced rate for the student's SETSS absent a finding that the provider was unqualified, the services were not delivered, or that any misconduct occurred. The parent alleges that equitable considerations favor her request for direct funding.
For relief, the parent requests an order: reversing the portion of the IHO's decision which denied direct funding for the student's SETSS; reversing and vacating the IHO's prohibition on the parent's chosen provider; vacating the IHO's remedial order; mandating that the district immediately fund five periods per week of bilingual SETSS in Yiddish through the parent's chosen provider; authorizing direct funding for the student's SETSS at the enhanced rate; and awarding compensatory services and/or compensatory funding for the student.
As noted above, the district has not submitted an answer to the request for review or otherwise appeared in this matter.
V. Discussion
As further described below, I am constrained to dismiss the parent's appeal because there is no evidence that the appeal was properly initiated against the district in compliance with State regulations.
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]). Personal service on a school district is made "by delivering a copy thereof to the district clerk, to a trustee or member of the board of education of such school district, to the superintendent of schools, or to a person who has been designated by the board of education to accept service" (8 NYCRR 279.4[b]). 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]).
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 alsoApplication 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]).
According to the affidavit of service, the parent served the notice of request for review, the request for review, and an affidavit of verification "on CSE7" by emailing and leaving it with the "Consultant Impartial Hearing Representative, Special Education Unit" (Parent Aff. of Service). The parent's proof of service fails to show that she personally served the district with the request for review in the manner required by State regulation, as she did not indicate that personal service was made upon the district clerk, a trustee, the superintendent, or a person designated by the board of education to accept service (see 8 NYCRR 279.4[b]; Application of a Student with a Disability, Appeal No. 20-020; Application of a Student with a Disability, Appeal No. 12-077; see alsoAppeal of Villanueva, 49 Ed. Dep't Rep. 54, Decision No. 15,956 [personal service under similar regulatory provisions on unidentified receptionist found improper]; Appeal of Baker, 47 Ed. Dep't Rep. 280, Decision No. 15,696 [service on the executive secretary to the superintendent found under similar regulatory provisions improper]). The "Consultant Impartial Hearing Representative" is not among the individuals specified in State regulation upon whom service may be made and there is no indication that the district designated the individual served to accept service on the district's behalf (8 NYCRR 279.4[b]).[1]
Under these circumstances, given the deficiencies in compliance with Part 279 and the defect in service on the district, the appeal must be dismissed.
VI. Conclusion
Based on the foregoing, the appeal is dismissed for failure to properly initiate the appeal.
THE APPEAL IS DISMISSED.
Footnotes
[1] As identified above, the parent filed email correspondence, reflecting transmittal to the district, of the notice of intention to seek review. From the email correspondence it appears that, on December 23, 2025, the parent emailed the notice of intention to seek review to the same individual identified in the parent's January 16, 2026 affidavit of personal service. Thereafter, on January 5, 2026, the parent emailed the notice of intention to seek review to "CSE 7," as well as an attorney for the district. There was no response from the district included in the emails.