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April 18, 2005.

JOHN DOES and JANE JONES, Individually, and on behalf of their minor children with disabilities, Plaintiffs,
RICHARD P. MILLS, in his representative capacity as the Commissioner of Education of the State of New York and REBECCA H. CORT, in her representative capacity as Interim Deputy Commissioner of the New York Office of Vocational and Educational Services for Individuals with Disabilities a/k/a VESID, Defendants.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Defendant Richard Mills, Commissioner of Education of the State of New York (the "Commissioner") and Rebecca H. Cort, Interim Deputy Commissioner of the New York Office of Vocational and Education Services for Individuals with Disabilities ("VESID"), (the "Deputy Commissioner") (collectively the "Defendants") have moved under Rules 12(b) (1), (2), (3) and 12(h) (2), (3), Fed.R.Civ.P., to dismiss the amended complaint (the "Amended Complaint") of John Does and Jane Does, unnamed parents of ten unnamed children alleged to have been diagnosed with autism spectrum disorder (the "Plaintiffs"). For the reasons set forth below, the motion is granted.

The Plaintiffs have brought an action, pursuant to 42 U.S.C. § 1983 et seq., to challenge the validity of newly adopted regulations of the Commissioner of the State Education Department (the "SED regulations") that prescribe new procedural requirements to ensure that impartial hearings are conducted in a timely manner pursuant to the Individuals with Disabilities Education Act of 1997 (the "IDEA statute"), 20 U.S.C. 1400 et seq., and its implementing regulations. The SED regulations at issue are as follows: 8 N.Y.C.R.R. §§ 200.5(i) (3) (xii) (g),*fn1 200.5(i) (3) (xiii),*fn2 and 200.5(i) (4).*fn3 Plaintiffs argue that these regulations violate federal and state law. They seek declaratory relief, injunctive relief, attorneys' fees, and incidental costs and disbursements.

  The Defendants urge dismissal of the Amended Complaint on grounds that Plaintiffs lack standing to challenge the SED regulations at issue, that the Plaintiffs have failed to state a cause of action, and that this Court should abstain from exercising its jurisdiction over this action.

  The parties have presented significant issues affecting children afflicted with serious disabilities and the federal and state statutory regulations providing for their educational needs.

  Prior Proceedings

  The Complaint was filed on April 15, 2004. The Amended Complaint was filed July 15, 2004. Pursuant to a briefing schedule endorsed by the Court, the instant motion was filed on August 26, 2004, and it was heard and marked fully submitted on December 1, 2004.

  The Statutory and Regulatory Regimen

  According to the Deputy Commissioner, the regulations at issue were adopted to ensure that the SED satisfies its obligations pursuant to the IDEA statute and its implementing regulations. (See February 2004 Letter from Cort to District Superintendents, et al.).

  The following background on the IDEA is useful:

  In 1975, Congress passed the Education for All Handicapped Children Act. The Act was passed based on findings that the special-education needs of over half of the children in the United States with disabilities were not being fully met. Specifically, Congress found that one million children with disabilities were entirely excluded from the public school system while others were allowed to participate but did not realize the full benefits of an education because their disabilities went undetected. Thus, by mandating a Free Appropriate Public Education ("FAPE") for all students with disabilities in the Least Restrictive Environment ("LRE") possible, Congress effectively required schools to fully incorporate students with disabilities into the public education system. The landmark legislation also gave students with disabilities and their parents unprecedented due process rights. The law included a requirement that school officials and parents jointly design an Individualized Education Program ("IEP") for each student requiring special-education. Since 1975, Congress has amended the statute several times. One of those amendments, enacted in 1990, gave the law a new name: the Individuals with Disabilities Education Act ("IDEA"). Allan G. Osborne, Jr., Discipline of Special-Education Students Under the Individuals with Disabilities Education Act, 9 Fordham Urb. L.J. 513, 513-514 (2001).

  To qualify for federal funding provided pursuant to the IDEA statute, a state must demonstrate that it has policies and procedures in place to ensure that: (1) each child with disabilities is provided with a FAPE pursuant to an IEP, see 20 U.S.C. § 1412, and (2) that the parents of such children are provided with opportunities both for mediation and for an impartial hearing on "complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of" a FAPE. See 20 U.S.C. § 1415(b)(6).

  The IDEA statute provides parents with the following rights with respect to any impartial hearing concerning the identification, evaluation, or educational placement of a child with disabilities: (1) to "be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities," 20 U.S.C. § 1415(h) (1); (2) to "present evidence and confront, cross-examine, and compel the attendance of witnesses," 20 U.S.C. § 1415 (h) (2); and (3) to have a hearing record and to receive written findings of fact and a decision. See 20 U.S.C. § 1415(h) (3), (4). The IDEA is silent as to whether parents are entitled to attorney argument, extensions of time, hearings of particular or unlimited length, or unfettered discretion by the Impartial Hearing Officer ("IHO") with respect to the extension of deadlines and time limits.

  A parent "aggrieved" by an IHO decision may appeal to a second administrative level if available. See 20 U.S.C. § 1415(h). Upon exhaustion of administrative review, an appeal may be made to a state or federal court. 20 U.S.C. § 1415(i) (2) (A). Failure to exhaust administrative remedies under the IDEA prior to making such an appeal deprives a court of subject matter jurisdiction. See Polera v. Board of Educ. of Newburgh Enlarged City School Dist., 288 F.3d 478, 483 (2d Cir. 2002).

  Regulations promulgated pursuant to the IDEA require that each State Education Authority ("SEA") periodically certify its compliance with the IDEA. See 34 C.F.R. § 300.110(a). Such regulations also incorporate the IDEA's recognition of parents' rights to be heard at an impartial hearing. See 34 C.F.R. § 300.509. These regulations also provide that hearings should be held "at a time and place that is reasonably convenient to the parents and child involved." 34 C.F.R. § 300.511 (d). Finally, the regulations provide that the SEA shall ensure that a final decision is reached on a parental complaint no more than 45 days after receipt of a hearing request. See 34 C.F.R. § 300.511(a). An IHO "may grant specific extensions of time beyond [the 45 days] at the request of either party." 34 C.F.R. § 300.511(c). New York State's implementation of the IDEA can be found in Article 89 (entitled "Children with Handicapping Conditions") of the New York Education Law. See N.Y. Educ. L. §§ 4401-4410-b. Article 89 provides, in pertinent part, that upon notice by a parent of a dispute, a local board of education must appoint an IHO "to hear the appeal and make a determination within such period of time as the commissioner by regulation shall determine." N.Y. Educ. L. § 4404(1). The IHO's determination can be appealed to a State Review Officer ("SRO"). See N.Y. Educ. L. § 4404(2); see also Engwiller v. Pine Plains Cent. School Dist., 110 F. Supp. 2d 236, 240 (S.D.N.Y. 2000).

  SED has adopted regulations pursuant to the IDEA. See 8 N.Y.C.R.R. Part 200. Section 200.5(i)(4) of the SED regulations provides that "the impartial hearing officer shall render a decision . . . not later than 45 days after the receipt by the board of education of a request for a hearing or after the initiation of such a hearing by the board." 8 N.Y.C.R.R. § 200.5(i) (4). Section 200.5(i) (4) (i) provides that "[a]n impartial hearing officer may grant specific extensions of time . . . at the request of either the school district or the parent." 8 N.Y.C.R.R. § 200.5(i) (4) (i).

  On February 23, 2004, the SED Board or Regents approved certain amendments to section 200.5 of the regulations, and these amendments became effective on May 1, 2004. These amendments include the statutory provisions that are at issue in this case.

  The Complaint

  Plaintiffs are parents of ten children "diagnosed with one variant or another of an autism spectrum disorder," each of whom has an IEP and has requested a hearing. (See Am. Compl. ¶¶ 10, 14.) The Amended Complaint does not specify the substance, procedure, or status of such hearings. Plaintiffs reside in unspecified counties in the Southern District of New York. (See Am. Compl. ¶ 11.) No information has been provided as to the school districts of the children at issue.

  Plaintiffs assert jurisdiction under 42 U.S.C. § 1983 et seq., the Rehabilitation Act, 29 U.S.C. § 794 et seq., and 28 U.S.C. § 1331. (See Am. Compl. ¶ 10.) According to the Plaintiffs, the challenged regulations violate the Fifth and Fourteenth Amendments, the IDEA, federal IDEA regulations, the Rehabilitation Act, prior SED regulations, the State Code of Judicial Conduct, and state public policy. (See Am. Compl. ¶¶ 1, 2, 4, 5, 28, 44, 45, 47.)

  The gravamen of the Amended Complaint is that the challenged SED regulations violate the rights of parents of children with disabilities to be heard and to have a full and fair opportunity to proffer evidence and to examine and cross-examine witnesses before an IHO. Furthermore, Plaintiffs argue that the challenged SED regulations discourage the exercise of their rights, virtually guarantee numerous hearings in cases that might have been settled, set more restrictive procedural standards than the IDEA and state and federal ...

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