1993). In Allen, Judge Bartels faced virtually identical facts to those before the Court, down to a nearly identical complaint composed by the same counsel. The Allen plaintiff pursued virtually identical claims concerning the Board's conduct in performing clerical functions for the IHOs. See id., slip op. at 3. Judge Bartels held that these allegations address the function of the local school board in effectuating the state regulations, not the regulations themselves. See id. at 5. The court held that "the hearing officers and the Commissioner would have the authority to require a change in [sic] such procedure if it were found to violate the due process requirements of the IDEA." Id. at 5-6. Thus the reviewing agency would have the power to grant the relief the plaintiff sought, and the futility exception would not apply. See id.
The Court finds Judge Bartels' persuasive opinion to be well reasoned and directly on point. As Judge Bartels correctly points out, the regulations require the Board to forward a complete record. See id. Plaintiff's claim solely attacks the Board's alleged failure to comply with this regulation by discarding the drafts. Should plaintiff successfully demonstrate that the Board failed to comply with this regulation the SED Appeals Board would have the authority to enforce the regulation and grant plaintiff relief. To the extent that the claims address solely the Board's implementation, the Court, pursuant to the above analysis, grants summary judgment under the exhaustion doctrine.
Judge Bartels, however, held that the claims concerning impartiality, which stein from the fact that the Board selects and pays the IHOs, reached beyond the Board's implementation, and also challenged the requirements of the regulations themselves. See id. Under this analysis, the defendants, bound to follow the state laws and regulations, would be unable to provide the relief sought by plaintiff, placing these claims squarely within the futility exception. See id.; see also Heldman, 962 F.2d at 159. Judge Bartels held that the district court could exercise subject matter jurisdiction over the impartiality claims. See id. Again the Court agrees with Judge Bartels' analysis, and concludes that the Court must reach the merits of any claim purporting to challenge the validity of the state implementing statutes. Although the plaintiff does not explicitly make a challenge to the state law in his complaint, the challenge is made in plaintiff's opposition to the defendants' motion for summary judgment. The SED concedes jurisdiction on this issue, and argues for summary judgment on the merits. In an abundance of caution the Court will, therefore consider the merits of the issue.
In addressing the merits of the issue of whether New York State Public Education Law § 4404 violates IDEA by permitting the Board to appoint and pay the IHOs, the Court must look to the language of IDEA and its implementing regulations. Plaintiff argues that § 4404 violates IDEA because allowing the Board to appoint and pay the IHOs effectively makes them employees of the Board. IDEA does not permit employees of the Board to serve as IHOs. See 20 U.S.C. § 1415(b)(2). The regulation promulgated by the United States Department of Education implementing this section provides that "a person who otherwise qualifies to conduct a hearing under paragraph (a) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer." 34 C.F.R. § 300.507(b). The Department of Education's interpretation of this section is entitled to great deference. See Chevron v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) ("if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute"). The Court may only determine whether "the agency's construction is rational and consistent with the statute." NLRB v. Food and Commercial Workers, 484 U.S. 112, 123, 108 S. Ct. 413, 98 L. Ed. 2d 429 (1987).
The Second Circuit has specifically upheld this regulation as sufficiently protecting the parents' right to an unbiased hearing officer. See Heldman, 962 F.2d at 155. The same regulation also requires the state education authorities to each keep lists of the IHOs and monitor their qualifications. See 34 C.F.R. § 300.507(c). IDEA permits state law to determine whether the local or intermediate state education unit will hold the impartial hearing. See 20 U.S.C. § 1415(b)(2). Nowhere in IDEA or its implementing regulations is a ban imposed on permitting the local board to appoint or pay the IHOs. In fact, § 1415(a) requires both state and local educational agencies to implement procedural safeguards. New York State Education Law § 4404(1), requiring the local board to appoint impartial hearing officers (emphasis added), is directly authorized by IDEA, 20 U.S.C. § 1415.
Finally, the Court notes that federal common law
recognizes that neither appointment and nor payment of an individual by an entity are the determinative factor in deciding whether that person is an employee of the entity. See Melancon v. Amoco Production Co., 834 F.2d 1238, 1244-45 (5th Cir. 1988). The determinative factor is the entity's ability to exert control over the individual. See id. In this action plaintiff fails to demonstrate a single issue of fact indicating that section 4404 allows defendants to exert control over the IHOs as employees.
Based upon the foregoing, the Court finds that this section is in keeping with IDEA's due process requirements as a matter of law. Thus, the Court grants the defendants' motions for summary judgment on this claim as well.
It is HEREBY ORDERED that pursuant to the above analysis defendants' motions for summary judgment are GRANTED entirely. SO ORDERED.
SIGNED this 31st day of March, 1994.
UNITED STATES DISTRICT JUDGE