STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-371
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 Sara Randel, Esq. and Kashif Forbes, 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 fund respondent's (the parent's) privately obtained services delivered by P3 Connect (P3) for the 2024-25 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
Given this matter is being dismissed on procedural grounds, a detailed recitation of the facts and procedural history is not necessary. Briefly, a CSE convened on November 14, 2023, found the student eligible for special education services as a student with a speech or language impairment, and developed an IESP with a projected implementation date of November 28, 2023 (Dist. Ex. 3 at pp. 1, 10).[1],[2] The November 2023 CSE recommended that the student receive three periods per week of direct group special education teacher support services (SETSS) and two 30-minute sessions per week of individual speech-language therapy (id. at pp. 7-8). The November 2023 IESP further indicated that the student had been parentally placed in a nonpublic school (id. at p. 10).
A CSE convened on May 17, 2024, continued to find the student eligible for special education services, and developed an IESP with a projected implementation date of September 5, 2024 (Dist. Ex. 4 at pp. 1, 8-9, 11). The May 2024 CSE recommended that the student receive three periods per week of direct group SETSS, two 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of individual physical therapy (PT) (id. at pp. 8-9). The May 2024 IESP further indicated that the student had been parentally placed in a nonpublic school (id. at p. 11).
On May 16, 2024, the parent signed a district form that indicated she had placed the student at a nonpublic school at her own expense and wanted the district to provide the student with special education services for the 2024-25 school year (Parent Ex. E).
On July 9, 2024, the parent entered into an agreement for services with P3 to provide the student with SETSS at a rate of $175 per hour during the 2024-25 school year (Parent Ex. G at pp. 1-2). Attached to the agreement was a services page that indicated P3 would provide the student with three 60-minute sessions of SETSS and two 30-minute sessions of speech-language therapy (id. at p. 3).[3] However, the agreement itself indicated that P3 would "use best efforts to attain an appropriate SETSS provider" and included a rate for SETSS, it did not indicate that the agency would use its best efforts to provide speech-language therapy or specify a rate for that service, nor did it reference PT (id. at pp. 1-2).
A. Due Process Complaint Notice
In a due process complaint notice dated January 2, 2025, the parent, through an advocate, alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A at p. 1). The parent asserted that the student should be "approved" for three periods per week of SETSS, and two 30-minute sessions per week of speech-language therapy at enhanced rates for the 2024-25 school year, based on the last agreed upon program set forth in a January 2020 IESP (id.). The parent contended that the district failed to implement the January 2020 IESP and that she was unable to find a provider at the district's standard rate (id.). The parent requested an order for the district to fund the requested services at enhanced rates and compensatory education for any missed services (id.).[4]
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO (the IHO) with the Office of Administrative Trials and Hearings (OATH) on June 18, 2025 (see Tr. pp. 1-58). In a decision dated February 17, 2026, the IHO found that the district failed to implement the IESP, resulting in a denial of a FAPE to the student and that the relief the parent sought was appropriate (IHO Decision at p. 1). The IHO further found that it was undisputed that the student was entitled to SETSS pursuant to the May 17, 2024 IESP and that the district did not allege or present evidence that SETSS were implemented (id. at p. 2). Next, the IHO determined that the district did not present evidence to establish an appropriate rate for the services that were requested (id.). The IHO also declined to apply a Burlington/Carter analysis to the parent's claims and found that the district had shifted its obligation to implement the program to the parent while arguing that the parent failed to implement the program as the district intended (id. at pp. 2-3). The IHO further held that the district failed to establish that the balancing of equitable considerations should result in the parent being denied all relief or a reduction of the requested rate (id. at p. 3). The IHO held that equitable considerations favored the parent (id.). The IHO concluded that the district failed to establish that the student was offered a FAPE for the 2024-25 school year and that the relief requested by the parent was appropriate (id.). The IHO ordered the district to fund three periods per week of group SETSS at a rate not to exceed $175 per hour for the entirety of the 2024-25 school year (id.).
IV. Appeal for State-Level Review
The district appeals and argues that the IHO erred in finding that the SETSS obtained by the parent were appropriate for the student. Further, the district contends that the IHO erred by awarding the parent the requested rate and finding that equitable considerations favored the parent. Lastly, the district asserts that the IHO erred in finding that the student was entitled to pendency.
The parent has not appeared or interposed an answer 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 timely 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 March 30, 2026 (see Dist. Decl. of Serv.). In its declaration of service, the district asserts that the parent's lay advocate confirmed with the district that the parent was aware of this appeal, was being represented on appeal by the lay advocate, agreed to waive personal service, and consented to the lay advocate accepting electronic service of documents in this proceeding on the parent's behalf (id.). However, in support of the declaration of service, the district submits email correspondence, dated March 5, 2026, in which the district requested that the lay advocate confirm: that the parent was aware of the appeal, that the parent retained the lay advocate to represent her in the appeal, and that the parent agreed to forego personal service and authorized the lay advocate to accept email service on her behalf for all appeal documents (Mar. 5, 2026 email correspondence). On March 10, 2026, the lay advocate responded via email stating "Yes, confirmed that [lay advocate] will be representing the parent. Please send all correspondence to us through email" (Mar. 10, 2026 email correspondence).
Accordingly, although the district asserts in its declaration of service that the lay advocate confirmed that the parent was aware of the appeal, was being represented by the lay advocate, and consented to the lay advocate accepting electronic service on respondent's behalf, the email correspondence provided by the district in support of these assertions does not contain the affirmative statements to support them. The general statement of confirmation that the lay advocate would be representing the parent and the direction to send "all correspondence" to the lay advocate did not directly address the district's queries as to whether the parent was aware of the appeal or whether the parent authorized the lay advocate to accept service of all appeal documents. Accordingly, the district has failed to demonstrate that the parent agreed to waive personal service of the request for review in this matter. Additionally, the parent has not appeared in this matter; nor has an attorney or lay advocate filed a responsive pleading on the parent's behalf.
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 insufficient evidence 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 insufficient indication 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 with any specificity. 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.
VII. 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] The district's exhibit list incorrectly described exhibit 3 as a January 17, 2023 IESP. Review of the document and consistent with the transcript of the proceedings, district exhibit 3 is a November 14, 2023 IESP (Tr. pp. 4-5; Dist. Ex. 3 at pp. 1, 10).
[2] 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]).
[3] The services page indicated a number of sessions and a duration of sessions, but did not indicate the frequency of delivery (Parent Ex. G at p. 3).
[4] The parent also invoked the student's right to pendency (Parent Ex. A at p. 1). On July 2, 2025, a prior IHO issued an interim order on pendency finding that the student's pendency services were based on a May 17, 2024 IESP and consisted of three periods per week of SETSS, two 30-minute sessions per week of speech-language therapy, and one 30-minute session per week of PT (Interim IHO Decision at p. 1).