STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-391
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 Grace K. Gerhart, 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) appeal from a 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 fund the student's private services and compensatory education for the 2023-24, and 2024-25 school years. 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 programming 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 April 23, 2021, 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 September 9, 2021 (Parent Ex. B at pp. 1, 11).[1] The April 2021 CSE recommended the student receive seven periods of direct, group special education teacher support services (SETSS) per week, three 30-minutes sessions of individual speech-language therapy per week, three 30-minute sessions of individual occupational therapy (OT) per week, and one 30-minute session of group counseling services per week (id. at p. 11). The April 2021 IESP further indicated that the student was parentally placed in a nonpublic school (id. at p. 13).
A CSE convened on July 31, 2023, found that the student continued to be eligible for special education services as a student with a speech or language impairment, and developed an IESP with a projected implementation date of September 7, 2023 (Parent Ex. C at pp. 1, 9; see also Dist. Ex. 11). The July 2023 CSE recommended the student receive two 30-minute sessions of individual speech-language therapy per week and two 30-minute sessions of individual OT per week (Parent Ex. C at p. 9). The July 2023 IESP also indicated that the student was parentally placed in a nonpublic school (id. at p. 12).
On a district form dated and signed by the parent on May 29, 2024, the parent indicated that she placed the student in a nonpublic school at her own expense and requested that the district provide special education services for the 2024-25 school year (Parent Ex. I).
The parent entered into a "Parent Service Contract" with an OT provider on September 27, 2024 (see Parent Ex. H). The agreement indicated that the OT provider would provide three 30-minute sessions of 1:1 OT for the 10-month 2024-25 school year at "a rate of $150 per session/$300 per hour" (id. at p. 1).
A CSE convened on November 14, 2024, found that the student continued to be eligible for special education services as a student with a speech or language impairment and developed an IESP with a projected implementation date of December 2, 2024 (Parent Ex. D at pp. 1, 11; see also Dist. Ex. 6). The November 2024 CSE recommended that the student be provided with two 30-minute sessions of individual speech-language therapy per week and two 30-minute sessions of individual OT per week (Parent Ex. D at p. 11). The November 2024 IESP indicated that the student was parentally placed in a nonpublic school (id. at p. 14).
A. Due Process Complaint Notice
In a due process complaint notice dated December 24, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23, 2023-24, and 2024-25 school years (Parent Ex. A at pp. 1, 3). The parent asserted three claims: (1) that the district "failed to implement the Student's 2024-2025 IESP services"; (2) that the July 2023 CSE was procedurally and substantially defective because SETSS and counseling services were removed without justification; and (3) that the district failed to timely develop an educational program for the student for the 2024-25 school year (id. at p. 4). The parent also invoked the student's right to pendency (id.).
For relief, the parent requested a finding that the district failed to implement the student's IESP services for all school years, which significantly impeded the student's right to a FAPE (Parent Ex. A at p. 4). Further, the parent requested an order for the district to implement all IESP services for the 2024-25 school year by directing the district to fund the IESP services at the providers' market rates and with providers selected by the parent (id. at pp. 4-5). Lastly, the parent requested compensatory relief consisting of "special education instruction, speech therapy, and [OT]" at the providers' market rate by providers selected by the parent (id. at p. 5).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on March 4, 2026 (see Tr. pp. 1-50). In a decision dated February 25, 2026, the IHO found that the student's pendency program was based on the April 2021 IESP (IHO Decision at p. 3). The IHO further held that the district failed to meet its burden to demonstrate it had provided the student a FAPE on an equitable basis as neither the July 2023 nor November 2024 IESPs were implemented (id. at pp. 4-5). Regarding the appropriateness of the unilaterally obtained OT services, the IHO noted that the district failed to offer any evidence to demonstrate the inappropriateness of the program (id. at p. 6). Therefore, according to the IHO, the parent successfully demonstrated that the unilaterally obtained OT services were appropriate (id. at pp. 6-7).
Turning to equitable considerations, the IHO found that the evidence submitted by the district regarding rate excessiveness was not credible because the district did not call any witnesses to explain the study it submitted into evidence or to substantiate its contents (IHO Decision at p. 7). The IHO further found that there was no evidence that the parent obtained services beyond what the district "was obligated to provide" and that the hearing record "reflects that the [s]tudent's significant deficits warrant the SETSS obtained by the [p]arent" (id.). The IHO determined that the parent was entitled to funding for 54 hours of OT at the rate of $300 per hour for the 2024-25 school year (id. at p. 8). With respect to the request for compensatory education, the IHO held that the parent "established that there was a deficit [] created by the [d]istrict's failure to provide a FAPE" which warranted the requested relief (id. at p. 10). The IHO ordered 504 hours of compensatory education of SETSS at a reasonable market rate (id. at p. 11).[2]
IV. Appeal for State-Level Review
The district appeals. The district argues that the IHO improperly issued relief for the 2023-24 school year as it was outside the scope of the hearing because the parent failed to specify a request of compensatory SETSS for that school year in the due process complaint notice. The district also contends that the IHO erred by determining the unilaterally obtained OT services were appropriate. The district asserts that the IHO erred in awarding the student compensatory education for the 2024-25 school year because the hearing record did not support an award of compensatory SETSS. Additionally, the district argues that the IHO erred in awarding an appropriate rate for OT. Lastly, the district contends that the IHO erred in awarding pendency.
The parent has not 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 a request for review on a lay advocate by electronic mail on April 6, 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 10, 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. 10, 2026 email correspondence). On March 10, 2026, the lay advocate responded via email stating "Yes" to all the district's questions (Mar. 10, 2026 email correspondence). The parent has not appeared in this matter, nor has an attorney or lay advocate filed a responsive pleading on the parent's behalf.[3]
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 at https://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]). Although the district emailed the parent advocate asking if the parent has "agreed to forego personal service" and has authorized the advocate to "accept email service on their behalf for all appeal documents" and the parent advocate responded "yes"; the same email sent by the district specifically indicated that the district would "also be emailing the parent directly"; however, there is no document included with the district's papers indicating that the parent was contacted directly. Additionally, the emails did not indicate that the parent was copied on any of the communications, such that it cannot be determined that the parent was aware of those communications. Overall, the lay advocate emailing a general "yes" to the three questions asked by the district does not provide sufficient indication to find that the parent was aware of the district's appeal or authorized the lay advocate to appear and accept service of process on the parent's behalf as the hearing record does not include any writing from the parent indicating that she either waived personal service or was informed by the advocate of what has taken place in this proceeding. 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.
Dated: May 6, 2026
Steven Krolak
STATE REVIEW OFFICER
Footnotes
[1] 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]).
[2] The IHO broke down the SETSS calculating that the student should have received seven periods per week over the course of two school years, with a total of 252 periods of SETSS awarded for the 10-month 2023-24 school year and 252 periods of SETSS awarded for the 2024-25 school year (IHO Decision at pp. 11, 12).
[3] 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. The lay advocate did not respond to correspondence from the Office of State Review requesting an update on the status of the matter. There is no indication the parent was copied on the lay advocate's communications.