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August 16, 2000


The opinion of the court was delivered by: McMAHON, United District Judge.


Plaintiff Barbara Engwiller brought claims on behalf of her daughter, Jacqueline, under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401 et seq. against the Board of Education for the Pine Plains Central School District ("the School District") and the New York State Education Department ("SED"); and under 42 U.S.C. § 1983 against New York State Education Commissioner Richard P. Mills, in his individual capacity, and New York State Special Education Manager Rita Levay, who is also sued in her individual capacity. Her claims arise out of the failure of an impartial hearing officer ("IHO") to issue a decision on Plaintiff's challenge of Jacqueline's Individualized Education Program ("IEP") for the 1998-99 school year.

On May 31, 2000, the State Defendants moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). On June 23, 2000, Plaintiff filed an amended complaint to include claims under the IDEA and the Due Process Clause of the Fourteenth Amendment via 42 U.S.C. § 1983. The School District then brought a 12(b)(6) motion, filed on June 29, 2000, for dismissal of Plaintiff's amended complaint. On July 1, 2000, the State Defendants in turn moved for summary judgment under Fed.R.Civ.P. 56, and have asked this Court to refrain from deciding their motion to dismiss Plaintiff's original complaint.

Defendants' motions are disposed of as follows: (1) the State Defendants' motion for summary judgment is granted as to Plaintiff's claims against Defendants Mills and Levay under 42 U.S.C. § 1983; and denied with respect to Plaintiff's claims against the State; and (2) the School District's motion to dismiss is denied, but a determination on the merits will be deferred for ten days, by which time the SED must provide a decision on Plaintiff's challenge to her daughter's IEP.


(1) Statutory Framework Congress passed the IDEA to "assure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs," to ensure that the rights of children with disabilities and parents of such children are protected, and to assist states and their agencies in working toward those ends. See 20 U.S.C. § 1400(d)(1)-(4). The statute therefore requires that the IEP be reviewed and revised each school year. See id. § 1414(d).

Accordingly, the IDEA imposes elaborate procedural requirements to be followed in the event of a disagreement between the parents and the local educational agency with respect to the child's IEP. See id. § 1415. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, see id. § 1415(b)(1), and to initiate an impartial due process hearing. See id. § 1415(f)(1). States and local educational agencies must comply with these requirements in order to qualify for federal funding. See id. §§ 1412, 1413.

With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. See 20 U.S.C. § 1415(g). New York has opted for the two-tier approach. See New York Educ. Law § 4404. Under the New York scheme, a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by an impartial hearing officer ("IHO") appointed by the local board of education. See id. § 4404(1).

The IHO's decision must be rendered no later than 45 days after the receipt by the local board of education of a request for a hearing. See 34 C.F.R. § 300.511(a)(1); 8 N.Y.C.R.R. 200.5(i)(4). That deadline may be extended at the request of either the school district or the parent. See 34 C.F.R. § 300.511(c); 8 N.Y.C.R.R. 220.5(i)(4)(i). Nonetheless, the brevity of the 45-day requirement indicates Congress's intent that children not be left indefinitely in an administrative limbo while adults maneuver over the aspect of their lives that would, in large measure, dictate their ability to function in a complex world.

A parent dissatisfied with the decision of the IHO and the local educational agency have the right to appeal the IHO's decision to a state review officer ("SRO"). See New York Education Law § 4402(2). After these administrative remedies have been exhausted, a party may bring an Article 78 proceeding in state court or a federal action under § 1415(i)(2) of the IDEA. See 20 U.S.C. § 1415(i)(2)(A); N Y Educ. L. § 4404(3).

Where, as in this case, the IHO fails to render a decision within the mandated 45-day period, aggrieved parties may avail themselves of two procedures. First, a parent or school district may file a written complaint with the commissioner pursuant to 8 N.Y.C.R.R. 200.21. Upon receipt of the complaint, the commissioner is required to provide the impartial hearing officer with notice of the complaint and 30 days to respond thereto. 8 N.Y.C.R.R. 200.21(b)(2). If the commissioner finds "good cause" of either misconduct or incompetence on the part of the impartial hearing officer, the commissioner may issue a warning or, in cases where imposition of a more severe penalty "would not be justified," a conditional suspension of certification pending completion of a specified course of training. 8 N YC.R.R. 200.21(b)(4). As the State Defendants concede, the effectiveness of the complaint procedure under 8 N.Y.C.R.R. 200.21 is limited, given that the provision does not enable the commissioner to take any further action should the IHO persist in his or her failure to issue an immediate decision. (See State Def. Br. at 7.) There would, therefore, appear to be little point to invoking it.

In the alternative, either a parent or the school district may file an appeal to a state review officer ("SRO"), as provided by New York Education Law § 4404(2) and 8 N.Y.C.R.R. 200.5(j). The filing of a § 310 appeal confers upon the commissioner authority over the local school board. See N.Y. Educ. L. § 311(4). The responding party then has 20 days to file a verified answer, see 8 N.Y.C.R.R. 275.13(a), and an additional 30 days from service of the answer to file a memorandum of law, see 8 N.Y.C.R.R. 276.4(a) — a total of 50 days (almost two precious months) at a time when the decision is already long overdue. After the verified answer is filed, the petitioner has 10 days to submit a verified reply, see 8 N.Y.C.R.R. 275.14(a). A reply memorandum of law may be submitted with the prior approval of the commissioner. See 8 N.Y.C.R.R. 276.4(a). Once the SRO issues a decision, the Commissioner may issue a formal order requiring the IHO to issue an immediate decision, or, if necessary, remove the delinquent IHO. See N Y Educ. L. § 4404(1).
(2) Jacqueline's 1998-99 IEP and Plaintiff's Due Process Hearing The following facts are undisputed except as noted. Plaintiff's daughter, Jacqueline, is 17 years old. She is classified as learning disabled under the IDEA and its corresponding state statute, New York State Education Law Article 89 and its implementing regulations. Jacqueline entered the Pine Plains school system as a kindergarten student in 1987, and has resided in the Pine Plains School District since that date.

Jacqueline has had academic difficulties since kindergarten. She repeated kindergarten for the 1988-89 school year, and following her second year in kindergarten, the School District's Committee on Special Education ("CSE") classified her as learning disabled and entitled to IDEA services. Additionally, at or about that time, the school psychologist evaluated Jacqueline as being of average intelligence but having difficulty retaining letter sounds, formations of letters, numbers and arithmetic concepts.

Jacqueline continued to encounter academic roadblocks in subsequent years. A 1997 independent evaluation of Jacqueline revealed that, while her general intellectual capacity fell within the high end of the "average" range, she had significant deficits in multiple areas, especially primary auditory processing and sustained attention. Dr. Rissenberg further determined that Jacqueline's academic performance was three to five years below her grade placement, and that her reading comprehension was at the third grade level.

The present controversy stems from Plaintiff's dissatisfaction with the IEP that the School District's CSE formulated for Jacqueline for the 1998-99 school year.*fn1 On September 18, 1998, Plaintiff objected to the IEP and requested an impartial hearing under the IDEA. Plaintiff further notified the Pine Plains School District of her intent to remove Jacqueline from the school and place her at the nearby Kildonan School, a private institution. In that written notice to the School District, Plaintiff requested tuition reimbursement. The School District received Plaintiff's demand for a hearing on September 23, 1998.
On October 7, 1998, the Board appointed Dee Estelle Alpert to conduct the hearing, which began on November 10, 1998. As reflected in the School District's subsequent Section 310 appeal to the Commissioner, both parties waived the 45-day deadline for issuance of the IHO's decision, agreeing to six hearing dates concluding on August 9, 1999. Additionally, the parties agreed to submit closing briefs on September 3, 1999. Alpert told the parties that she would issue a decision within two weeks after she received those briefs. (See School District Verified Section 310 Petition, attached as Exhibit C to School District's Notice of Motion.) This timeline is consistent with Plaintiff's own acknowledgment at oral argument before this Court on June 20, 2000 that she agreed to several extensions of the 45-day requirement, but not to an indefinite extension. Thus, according to the parties' agreed schedule, Alpert should have rendered a decision no later than September 17, 1999. To date, no decision has been issued.

In January 1999, Plaintiff enrolled Jacqueline at Kildonan. Plaintiff has been unable to continue tuition payments to Kildonan, however, and was advised by that school in March 2000 that Jacqueline could not return until her outstanding tuition balance was paid.

Prior to the conclusion of the hearing, the School District had filed a complaint against Alpert under 8 N.Y.C.R.R. 200.21, alleging incompetence and bias based on her use of inappropriate language, smoking on school premises, and badgering of the School District's witnesses. After the due date for Jacqueline's decision, the School District telephoned Alpert's office several times to inquire about the status of the matter. By letter dated November 4, 1999, the School District expanded the scope of its complaint to include Alpert's failure to issue a decision within the agreed time frame. By letter dated January 25, 2000, Levay informed the School District that the SED had admonished Alpert for her misconduct and failure to render a timely decision, and had ordered her to issue a decision immediately. Alpert did not do so.

Six days after the hearing officer's letter of admonition, on January 31, 2000, Plaintiff made her own 200.21 complaint to Levay regarding Alpert's continued inaction. Levay responded by letter dated February 14, 2000, acknowledging receipt of Plaintiff's complaint. She recommended that Plaintiff file a Section 310 appeal to request that the Commissioner issue a formal order that Alpert render a decision, and enclosed with her letter a set of detailed instructions on filing Section 310 appeals. Levay's letter did not indicate that the SED would take further action in connection with Plaintiff's complaint.

On March 8, 2000, the School District sent Levay a letter informing her that Alpert had still failed to issue a decision, and asked the SED to reinitiate its complaint. Levay responded by letter dated March 28, 2000, in which she recommended that the School District file a joint Section 310 appeal with Plaintiff. Again, Levay's letter did not state that the SED would take any further action in the matter.

Meanwhile, on March 31, 2000, Plaintiff filed the instant suit against Defendants.

On April 17, 2000, the School District sent a letter to Plaintiff's counsel inquiring as to whether Plaintiff would be willing to participate in a joint appeal as recommended by Levay. Plaintiff did not respond to that letter, and on April 27, 2000, the School District filed its own Section 310 appeal, which named both Alpert and Plaintiff as respondents.

Alpert did not serve an answer to the School District's Section 310 petition. Plaintiff did file an answer, in which she contended that a parent of a disabled child is not a proper respondent in a Section 310 appeal. In his decision dated June 12, 2000, the Commissioner dismissed the appeal as against Plaintiff on the ground that the School District had not stated a claim or sought relief against her. The Commissioner ordered Alpert to issue a decision on the record within 10 days of his decision — i.e., by June 22, 2000. Alpert did not comply with this order. Therefore, on June 28, 2000, the Commissioner revoked Alpert's IHO certification pursuant to § 4404(1) of the Education Law and 8 N. Y.C.R.R. 220.21. The transcript of Jacqueline's hearing was sent to a new (unidentified) IHO for an immediate decision. Consistent with the history of this case, nothing has happened, though nearly two months have passed.

(3) The Present Action Plaintiff asserts the following claims: (1) violation of the IDEA against the School District for failing to provide Jacqueline with a free and appropriate public education ("FAPE"), by its refusal to include in Jacqueline's IEP the extended school day program and homework tutorial offered by the Kildonan School; (2) violation of Sections 1412(a)(6)(A) and 1415(b) of the IDEA against the SED for failure to ensure that a timely written decision was issued by the IHO, for denying Plaintiff notice of prior and pending complaints about the competence of IHO Alpert, and for failing to ensure that its administrative procedures are in accord with IDEA requirements and forcing parents to initiate an appeals process before receiving a final administrative decision; and (3) violation of 42 U.S.C. ยง 1983 against individual Defendants Mills and Levay, in their individual capacities, for denial of Jacqueline's and Plaintiff's right to procedural due process under the Fourteenth Amendment by their failure to provide Jacqueline and Plaintiff an impartial review of their complaints ...

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