STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-213
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 Board of Education of the Hicksville Union Free School District
Appearances:
Guercio & Guercio, LLP, attorneys for respondent, by Kathryn J. Maier, 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 parent) appeals from the decision of an impartial hearing officer (IHO) that dismissed the parent's due process complaint with prejudice. 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
Given the disposition of this matter on procedural grounds, a detailed recitation of the facts and procedural history is not necessary.
Briefly, the parent filed a due process complaint notice on October 24, 2025 (Dist. Ex. 1). The parent alleged "procedural violations" by the district including "CSE denial of participation, retaliation, altered documentation, and FERPA noncompliance," as well as a denial of a free appropriate public education (FAPE) and failure to provide services to the student (id. at p. 4). Subsequently, the district filed its response and a motion to dismiss the parent's due process complaint notice (Due Process Response and Mot. to Dismiss dated Nov. 3, 2025). The IHO considered the district's motion and determined the parent's due process complaint was legally sufficient and the parties were directed to appear for a prehearing conference (IHO Interim Decision dated Nov. 12, 2025).
Subsequently, the district filed a renewed motion to dismiss the parent's due process complaint and alleged that it was untimely, that the district was entitled to dismissal due to the parent's refusal to participate in the resolution process, and that the IHO did not have subject matter jurisdiction over certain of the parent's claims as outlined in the parent's response to the district's original motion to dismiss (Mot. to Dismiss dated Dec. 1, 2025).
On December 4, 2025, the parties convened before an IHO for a prehearing conference (Tr. pp. 1-69). At the conference, the IHO questioned the parties in an attempt to narrow the issues for the hearing (see generally Tr. p. 1-69). During the conference, the IHO requested that the parent clarify his position with regard to the denial of FAPE under the IDEA so that the parties could proceed to a hearing (Tr. pp.1-49). The district argued that the parent's claims were not clearly cognizable and that it had addressed the concerns of the parent that formed the basis of the due process complain notice, particularly by agreeing to provide the parent with an independent education evaluation; alternatively, the district argued that the parent was unable to state a claim and the due process complaint should be dismissed (Tr pp. 50-51). At the conclusion of the hearing, the district agreed to the IHO's proposed resolution of the dispute concerning the sufficiency of the due process complaint notice whereby the parent was granted leave to amend his due process complaint to allege cognizable claims provided the parent participated in the resolution process, reasoning that the parent may have alleged other types of civil claims, but that the IHO was not hearing education-related claims against the district that the IHO could resolve (id. at p. 51-52). The IHO granted the parent leave to amend his due process complaint within 30 days to allege "the facts that [he] believe[ed] that relate[d] to [the student] not receiving an education" and advised the parent that if he failed to do so the due process complaint would be dismissed (Tr. p. 53).
In an amended due process complaint notice dated January 7, 2026, the parent alleged that the district denied the student a (FAPE) for the 2025-26 school year (see generally Amended Due Process Compl.). The amended due process complaint alleged two enumerated violations that included "predetermination of placement" and "failure to conduct [functional behavioral assessment] FBA and develop [behavior intervention plan] BIP" (id. at pp. 1-3). The parent alleged further that from 2019 through 2025 the district was responsible for a "cumulative service delivery failure spanning six years [that] constitute[d] material FAPE denial" (id. at p. 3). In its response, the district again sought to dismiss the action due to lack of sufficiency and failure to properly plead the alleged claims noting, in pertinent part, that the parent failed to "clearly identify any IDEA violation" as well as provided only "vague requested relief" (District's Response to Parent's Amended Due Process Compl. at p. 11-12).
In a decision dated January 22, 2026, the IHO dismissed the parent's due process complaint with prejudice as it pertained to claims under the IDEA (IHO Decision p. 16).[1] At the outset, the IHO summarized the procedural history as discussed above and noted the specific instructions that were given to the parent on the record at the prehearing conference (id. at pp. 1-2). The IHO reviewed the district's arguments noting that many of the parent's claims were time-barred, certain requested remedies were "moot or improper", certain claims were outside the IHO's jurisdiction, and that the parent failed to participate in the resolution process which, taken by itself ,justified dismissal of the due process complaint notice (id. at p. 3). The IHO reviewed the parent's arguments and determined that each lacked an explanation as to how the district's actions or conduct denied the student a FAPE (id. at pp. 4, 6, 8, 9-10).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in dismissing the due process complaint notice. The parent argues that despite the IHO's directive, he was not required to provide "proof at filing" to survive dismissal and, instead, was only required to give the district adequate notice of the claims. The parent argues that as a pro se litigant he should have been afforded leeway and that the dismissal with prejudice was drastic and the matter should have been resolved after an evidentiary hearing. For relief, the parent requests that the IHO's order be reversed and the matter be remanded for an impartial hearing on the merits.
In an answer, the district objected to, among other things, the parent's service of the request for review upon the district. Primarily, the district argues that the parent failed to properly serve the district with both the notice of intention to seek review as well as the request for review. Specifically, with respect to the request for review, the district asserts that the parent transmitted the request for review to the district's attorney by email, who was not authorized to accept service on behalf of the district, and mailed and emailed a copy to the district's clerk, which did not constitute proper service in compliance with Part 279 of State regulations.
V. 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.). 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. Initially, I note that the parent did not file a notice of intention to seek review as required by the regulations (see 8 NYCRR 279.2). 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). Additionally, the parent's filed Request for Review was not signed (8 NYCRR 279.8[a][4]).
Turning to the "Affidavit/Proof of Service" attached to the request for review, the affidavit indicates that the parent served "the Request for Review (and attached papers) upon counsel for the Respondent" via "Electronic mail" and "First-class mail" and that such service was made in accordance with 8 NYCRR 279.4 (Aff. of Service of Req. for Rev.). However, in this instance, while the affidavit of service reflects that the parent effectuated service by electronic mail on the district's counsel, the parent did not include any reference to an agreement by the parties that counsel for the district was authorized to accept service and agreed to accept service via electronic mail (see Overview to Part 279: Filing a Review for Review (Section I): Serve and File the Request for Review, available athttps://www.sro.nysed.gov/book/serve-and-file-request-review.[2] Furthermore, the affidavit of service does not reflect that personal service upon the district was 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]).
While the district alleges in its answer that a request for review was received by the district clerk by mail and email, the district correctly asserts that the such service was improper under Part 279 (Vasquez v. Aviles-Ramos, 2026 WL 203270, at *6 [S.D.N.Y. Jan. 26, 2026] [explaining that actual notice is distinct from and does not mitigate defective service of process]). 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 and affidavit of service noted above, and further considering that there is no evidence a verified request for review has been properly 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 proper service raised by the district, this matter will be dismissed due to the parent's failure to comply with the practice regulations regarding service of a verified request for review on the district (Application of a Student with a Disability, Appeal No. 22-137; Application of a Student with a Disability, Appeal No. 22-130; Application of a Student with a Disability, Appeal No. 22-082; Application of a Student with a Disability, Appeal No. 16-015; Application of a Child with a Disability, Appeal No. 06-117).[3]
VI. 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.
Footnotes
[1] I note that the IHO dismissed the parent's additional claims under non-IDEA statutes or regulations without prejudice (IHO Decision pp. 15-16).
[2] The affidavit of service also states that the parent was the individual who effectuated service of the request for review, but also incorrectly indicates the parent was "not a party" to the appeal.
[3] The Office of State Review's website includes a section dedicated to assisting pro se parents with drafting, serving, and filing appeals (see "Parent Guide to Appealing the Decision of an Impartial Hearing Officer" available athttps://www.sro.nysed.gov/book/filing-request-review-section-i).