STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-419
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 Christine Roye, 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, pursuant to section 8 NYCRR 279.10(d) of the Regulations of the Commissioner of Education, from an interim decision of an impartial hearing officer (IHO) determining respondent's (the parent's) daughter's pendency placement during a due process proceeding challenging the appropriateness of petitioner's recommended educational program for the student for the 2025-26 school year as well as the final decision from that IHO which ordered the district to provide direct funding for privately obtained educational services and compensatory education. 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 § 3602c[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 September 12, 2024, 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 26, 2024 (Dist. Ex. 3 at p. 1). The September 2024 CSE recommended the student receive five periods of direct group special education teacher support services (SETSS) per week and two 30-minute sessions of individual speech-language therapy per week, both in Yiddish (id. at p. 9).[1] The September 12, 2024 IESP indicated that the student was parentally placed in a nonpublic school (id. at p. 12).
On a district form dated March 30, 2025, the parent indicated that she had placed the student at a nonpublic school at her own expense and requested that the district provide the student with special education services for the 2025-26 school year, her fifth-grade year (Parent Ex. F). On August 25, 2025, the parent signed a contract with Shay Holdings USA-LLC ("Shay Holdings") (Parent Ex. E). The contract indicated that the district had not implemented the student's special education services for the 2025-26 school year and the parties agreed that Shay Holdings would provide the student with the "required [s]pecial [e]ducation and related services program to whatever extent possible for the 2025-26 school year" (id. at p. 1).
A. Due Process Complaint Notice
In a due process complaint notice dated December 15, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 school year (Parent Ex. A). The parent alleged that she timely notified the district to provide the student's special education services at the nonpublic school, but the district failed to provide the services set forth in the September 2024 IESP (id. at p. 6). The parent alleged that the district did not assign any qualified providers or implement the student's IESP for the 2025-26 school year (id. at p. 7).
The parent also argued that the district denied the student a FAPE because the September 2024 CSE changed the student's SETSS to group instead of individual (Parent Ex. A at pp. 5-6). The parent asserted that during the 2024-25 school year, the student received five individual sessions of SETSS per week and two individual 30-minute sessions of speech-language therapy per week, both in Yiddish (id. at p. 7). The parent argued that the services received during the 2024 school year constituted the student's "operative placement" and therefore should be considered the student's pendency placement (id.).
As relief, the parent requested a pendency order, a finding that the district denied the student a FAPE for the 2025-26 school year, and an order that the district fund the privately obtained SETSS and a bank of compensatory education for services that were missed during the 2025-26 school year to be delivered by the parent's selected providers (Parent Ex. A at p. 9).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on February 12, 2026. That same date, the IHO issued an interim order on pendency, which found that the student's pendency program was based on the September 2024 IESP and ordered the district to provide the student with five hours per week of bilingual group SETSS and two 30-minute sessions per week of bilingual individual speech-language therapy, to be retroactive to the date of the filing of the parent's due process complaint notice (Interim IHO Decision at pp. 2-3).
In a final decision dated March 2, 2026, the IHO found that it was undisputed that the student was entitled to services for the 2025-26 school year and the district was obligated to provide the student with SETSS and speech-language services during that school year (IHO Decision at p. 3).[2] The IHO held that a Burlington/Carter analysis was not the appropriate standard to apply, reasoning that the district was required to provide services, it failed to do so, and as a result "the student is entitled to compensatory services" (id. at pp. 5-7). Although the IHO found that a compensatory analysis was the appropriate standard for assessing the parent's claims, the IHO also concluded that even if she had considered the case under a Burlington/Carter approach, she would have reached the same result (id. at pp. 8-9, 11).
The IHO noted that the district did not present any evidence to set forth a position regarding an appropriate compensatory education remedy (IHO Decision at p. 10). The IHO found that evidence submitted by the district that in October 2025 it offered the student weekend and afterschool services that would implement the student's educational plan was insufficient to establish that an actual provider was available to provide the services to the student in the recommended amounts (id. at pp. 4, 10). As a result, the IHO concluded that the district did not meet its burden to demonstrate that it offered the student with the educational services to which she was entitled (id. at p. 10). The IHO further found that there was sufficient evidence in the record to find that the services unilaterally provided to the student were tailored to her unique needs (id.). After reviewing equitable considerations, the IHO declined to reduce the overall award (id.). The IHO rejected the district's arguments that the parent was not interested in a district provider and that the rate charged by the private service providers was unreasonable (id. at p. 11).
Based on the foregoing, the IHO ordered the district to directly fund the unilaterally obtained SETSS provided by Shay Holdings during the 2025-26 school year, at a rate not to exceed $200.00 per hour (IHO Decision at p. 12). The IHO further ordered the district to provide the student with compensatory SETSS and speech-language therapy services, in the amount the student did not receive during the 2025-26 school year, to be provided by qualified providers chosen by the parent, at a reasonable market rate, with no expiration date for those services (id.). [3]
IV. Appeal for State-Level Review
The district appeals, alleging that the IHO erred in awarding the parent with direct payment of the student's privately obtained SETSS and compensatory services. The district asserts that it furnished all recommended services by making them available after school and on weekends, thereby meeting its obligations. The district argues that the parent's claims that the district could not implement services, made prior to receipt of the district's offer to provide services, were impermissibly speculative. The district argues that the parent did not establish at the hearing that the district was incapable of implementing services, and the district's offer to provide services after the start of the school year was only a procedural violation. The district argues that the parent was not entitled to any relief, but in the alternative, any relief should be limited to the period running from the beginning of the school year through the date the district offered the student special education services.
The district also argues that the IHO erred in applying the wrong standard to the analysis, and should have applied a Burlington/Carter framework. Regarding the IHO's finding that her holding would remain the same under a Burlington/Carter analysis, the district argues that the IHO provided little analysis that was limited to conclusory statements. The district further argues that the parent bears the burden to show that the unliterally obtained services were appropriate, and that she failed to meet her burden. The district asserts that the IHO failed to address the evidence regarding the delivery of SETSS services. The district argues that the evidence at the hearing did not sufficiently establish how the student's provider was appropriately addressing the student's needs. In the alternative, the district argues that the IHO failed to determine an appropriate rate for the awarded direct funding for SETSS services, and that the awarded relief should be limited to a reasonable market rate. [4]
Additionally, the district argues that the IHO erred in awarding compensatory relief without sufficient analysis. The district argues that the parent did not specify what agency from which they would seek implementation of the compensatory services. The district argues that the parent offered no evidence of Shay Holdings' provision of speech-language therapy, no evidence of what difficulties the parent faced arranging for speech-language therapy, and no evidence of difficulty for Shay Holdings to provide SETSS. The district argues that compensatory relief is not appropriate because the parent engaged in self-help and unilaterally obtained services from a provider who is not providing all of the student's recommended services.
The district also asserts that the parent's contract with Shay Holdings is illusory insofar as it lacks essential terms and therefore the parent failed to demonstrate the financial obligation required for direct funding or reimbursement. Specifically, the district argues that the contract with Shay Holdings does not specify the services to be provided, the amount of those services, and the time period during which the services will be provided, and therefore does not establish a clear financial obligation for the parent.
Lastly, the district argues that the IHO erred in awarding pendency based on the September 2024 IESP, arguing that the parent rejected pendency by unilaterally obtaining services that the district planned to provide prior to the commencement of the school year. Based on the foregoing, the district argues that the IHO's pendency order must be vacated and the final decision must be reversed in its entirety.
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 13, 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 6, 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. 6, 2026 email correspondence). On March 10, 2026, the lay advocate responded via email stating "Yes" to each of the district's questions (Mar. 10, 2026 email correspondence). Subsequent emails represent that a notice of intention to seek review was emailed to the lay advocate on March 11, 2026 and the district's request for review was emailed to the lay advocate on April 13, 2026 (March 11, 2026 email correspondence; April 13, 2026 email correspondence).[5] The parent has not appeared in this matter, nor has an attorney or lay advocate filed a responsive pleading or requested an extension of time to do so 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 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 had agreed to forego personal service and if she had agreed to accept service by email for all appeal documents, there is no direct evidence from the parent that she was aware of this attempted waiver or placed on notice of the proceedings. There is no indication that the parent was copied on any of the email communications between the district and the lay advocate regarding the service and filing of the pleadings, and so it cannot be determined that the parent was aware of these communications. Overall, the lay advocate emailing a general "yes" to each of 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 an 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: Albany, New York
May 29, 2026 JUSTYN P. BATES
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 IHO noted that the district had submitted a motion to dismiss the case for lack of subject-matter jurisdiction (IHO Decision at p. 2). The IHO denied that motion, finding she had jurisdiction to address the claims contained in the parent's due process complaint (id. at p. 3).
[3] The IHO held that during the 2025-26 school year, the student was entitled to five hours per week of group SETSS for 36 weeks, and one hour per week of individual speech-language therapy for 36 weeks (IHO Decision at p. 12).
[4] The district notes that it presented evidence at the hearing intended to establish the market rates for the services provided to the student, which the IHO excluded.
[5] Despite being referenced in the affidavit of service and email correspondence between the parties, the district did not file a notice of intention to seek review with the Office of State Review (see Dist. Decl. of Serv.; March 11, 2026 email correspondence; 8 NYCRR 279.2).