STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-502
Application of the BOARD OF EDUCATION OF THE WAPPINGERS CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability
Appearances: Thomas, Drohan, Waxman & Petigrow LLP, attorneys for petitioner, by Cassidy Allison, 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 the decision of an impartial hearing officer (IHO) which determined that the educational program and services recommended by its Committee on Special Education (CSE) for respondents' (the parents') daughter for the 2024-25 year was not appropriate. 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]).[1] 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[a]). 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, a full recitation of the student's educational history is not warranted. Briefly, a CPSE convened in April 2024 and, finding the student eligible to receive special education as a preschool student with a disability during the 2024-25 school year, recommended that the student receive two 60-minute sessions per week of special education itinerant teacher (SEIT) services in a small group and two 30-minute sessions per week of individual speech-language therapy services during the 10-month portion of the school year, and for summer 2024, the April 2024 CPSE recommended that the student continue to receive two 60-minute sessions per week of SEIT services in a small group to prevent substantial regression (see Dist. Exs. 1 at pp. 1, 9-10; 16 ¶¶ 7-8).[2]
In November 2024, the parents requested updated evaluations of the student, and, over the course of three days in December 2024, the following were completed: an occupational therapy (OT) evaluation, a classroom observation, a social history, a psychological evaluation, a bilingual speech-language evaluation, and an educational evaluation (see Dist. Exs. 2 at pp. 1-3; 5 at p. 2; 16 ¶¶ 10-20; see generally Dist. Ex. 6). A CPSE convened on May 9, 2025 to review the evaluative information, and as a result, the May 2025 CPSE added two 30-minute sessions per week of individual OT services for the student to the student's special education program, and continued to recommend SEIT and speech-language therapy services consistent with those services as set forth in the April 2024 CPSE IEP (see Dist. Exs. 2 at pp. 1-3, 13; 9 at p. 1; 13 at p. 1; 16 ¶¶ 21-25).
Given the student's age, it was anticipated that, for the 2025-26 school year, the student would transition from receiving from receiving CPSE (preschool) services to receiving CSE (school-age) services (see Dist. Ex. 16 ¶¶ 26-28). Evidence in the hearing record reflects that, on May 30, 2025, the district held a CPSE meeting and a CSE meeting, "back-to-back, but in a combined format," to determine what, if any, CPSE services the student would receive during summer 2025, and if the student was found eligible for school-age services, a CSE would determine the student's special education program for the remainder of the 2025-26 school year (see Dist. Ex. 17 ¶¶ 7-10). At that time, the May 2025 CPSE recommended summer services consisting of three 30-minute sessions per week of speech-language therapy and two 30-minute sessions per week of OT (see Dist. Exs. 3 at p. 1; 17 ¶ 12).
With regard to school-age services for the 2025-26 school year, the May 2025 CSE found the student eligible to receive special education as a student with a speech or language impairment, and, after reconvening in June 2025, the CSE recommended a general education placement with 80 30-minute sessions per year of individual speech-language therapy and 40 30-minute sessions per year of OT (see Dist. Exs. 4 at pp. 1-4, 11; 11; 14; 17 ¶¶ 14-32, 34-35).[3] The student's IEP for the 2025-26 school year also included recommendations for supplementary aids and services, program modifications, and accommodations (see Dist. Ex. 4 at pp. 11-12).
By due process complaint notice dated July 30, 2025, the parents alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2024-25 and 2025-26 school years based on various procedural and substantive violations (see Due Proc. Compl. Notice at pp. 3-10).[4] As relief, the parents requested an order directing the district to develop a new IEP for the student, fund an "independent special education expert" to guide the development of the student's IEP, compensatory educational services consisting of speech-language therapy services not provided, reimbursement for privately-obtained evaluations, staff training, and to correct "false or misleading records" (id. at pp. 10-11).
On September 16, 2025, the parties proceeded to an impartial hearing, which concluded on December 16, 2025, after four days of proceedings (see Tr. pp. 1-1164). In a final decision dated March 14, 2026, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year, but offered the student a FAPE for the 2025-26 school year (see IHO Decision at pp. 24-48). As relief, the IHO ordered the district, in part, to provide the student with compensatory educational speech-language therapy services for services not delivered during summer 2024 (id. at pp. 47-49).
IV. Appeal for State-Level Review
The district appeals, alleging that the IHO erred by finding that the district failed to offer the student a FAPE for the 2024-25 school year. The district contends that that the IHO exceeded his jurisdiction by considering whether the district failed to deliver speech-language services during summer 2024, as the parents did not raise this as an issue in the due process complaint notice. The district further contends that the IHO erred by finding that the district failed to provide speech-language therapy services during summer 2024 because the such services had not been recommended for the student and the IHO, therefore, misapprehended witness testimony on this issue. As relief, the district seeks to reverse the IHO's finding that it failed to offer the student a FAPE for the 2024-25 school year, reverse the IHO's finding that the district failed to provide the student with speech-language therapy services during summer 2024, and to vacate the IHO's award of compensatory speech-language therapy services.
The parents did not interpose an answer to the district's request for review.
V. Discussion—Service of Pleadings
As a threshold matter, it must be determined whether the appeal should be dismissed due to the district's failure to effectuate personal service of the request for review in compliance with the practice 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]). 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 and 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]).
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]).
The district had until no later than April 23, 2026 to complete service of its request for review and supporting papers in compliance with procedures in the manner described in Part 279. As noted above, the parents have not responded to the district's request for review. Accordingly, the affidavits of service submitted by the district must be sufficient on their face to establish that the request for review was served on the parents in compliance with State regulation. The district's request for review in this matter is dated April 21, 2026, and the accompanying affirmation of service reflects that, on April 21, April 22, and April 23, 2026, the district attempted to serve the parents with the notice of request for review, request for review, and memorandum of law in support, without success (see Req. for Rev. Affirmation of Serv.). Therefore, based on the affirmation of service, it appears that, on April 23, 2026, an individual affixed a "true copy of each" document—to wit, the notice of request for review, the request for review, and the memorandum of law—to the door of the parents' address identified within the affirmation of service (id.). The affirmation of service also reflects that same documents were mailed to the parents at the same address on April 23, 2026 (id.). The affirmation of service reflects that, rather than personally serving the parents, the district on its own initiative, resorted to another form of service more colloquially referred to as "nail and mail" service.
However, based on the foregoing, the district failed to initiate the appeal in accordance with the procedures prescribed in State regulations (see 8 NYCRR 279.4[a], [c][1]). Generally, while State regulations contemplate alternate forms of personal service if a respondent cannot be found upon diligent search—and further provide that a party may seek authorization for alternate forms of personal service through the Office of State Review—the district did not request authorization from an SRO to implement an alternate form of personal service, such as the "nail and mail" service.[5] Absent specific permission for such a form of alternate service, State regulations do not provide for "nail and mail" service (8 NYCRR 279.4). Therefore, because the district did not effectuate proper service in this matter by personally serving the parents, the district's appeal must be dismissed. Accordingly, the IHO's determination has become final and binding on the parties (see 34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see also M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
Under these circumstances, given the deficiencies in compliance with Part 279 and the defect in service on the parents who have not appeared in this matter, the appeal must be dismissed.
VI. Conclusion
In accordance with the discussion above, the district's appeal must be dismissed for failure to properly initiate the appeal.
THE APPEAL IS DISMISSED.
Dated: May 29, 2026
Justyn P. Bates
STATE REVIEW OFFICER
Footnotes
[1] Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm], 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804).
[2] State law defines SEIT services (or, as referenced in State regulation, "Special Education Itinerant Services" [SEIS]) as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available at https://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities). A list of New York State approved special education programs, including SEIS programs, can be accessed at https://www.nysed.gov/special-education/approved-preschool-special-education-programs. SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii]; see Educ. Law § 4410[1][k]).
[3] 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]).\
[4] The parents' due process complaint notice is not fully paginated; for the purposes of this decision, the pages will be cited by reference to their consecutive pagination with the first page as page one (see Due Proc. Compl. Notice at pp. 1-11).
[5] On April 29, 2026, well after the deadline for initiating an appeal in compliance with Part 279 had passed, the district filed a request for permission to email pleadings to the parent and indicated that it had detailed its attempts at service in a transmittal letter when filing the request for Review on April 25, 2026. These belated actions do not cure the prior failures or change the outcome of this proceeding.