The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
MEMORANDUM OPINION DENYING THE DEFENDANTS'MOTION TO DISMISS THE PLAINTIFFS'IDEACLAIM; GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE PLAINTIFFS' APA CLAIM; DENYING THE PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT
This matter is before the court following the promulgation of regulations by the Department of Education ("the Department") interpreting a provision of the Individuals with Disabilities Education Act ("the IDEA" or "the Act"), 20 U.S.C. §§ 1400 et seq. The defendants move to dismiss, or alternatively for summary judgment,*fn1 asserting that the plaintiffs lack standing to bring a claim under the IDEA, that the federal government is immune from suit under the IDEA, and that the court must defer to the agency's interpretation of the statutory provision at issue. The plaintiffs have filed a cross-motion for summary judgment, arguing that the regulations contravene the clear meaning and intent of the statute and are, therefore, invalid. Because the plaintiffs have stated a claim under the IDEA, the court denies the defendants' motion to dismiss that claim. But because the statutory provision at issue is ambiguous and the agency's interpretation is entitled to deference, the court grants the defendants' motion for summary judgment on the plaintiffs' Administrative Procedure Act ("APA") claim and denies the plaintiffs' cross-motion for summary judgment.
II. FACTUAL & PROCEDURAL BACKGROUND
The IDEA entitles all children with disabilities to "a free appropriate public education ["FAPE"] . . . designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). A FAPE, in turn, is defined as special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [20 U.S.C.] section 1414(d). 20 U.S.C. § 10-401(9) (emphasis added). Finally, the IDEA defines "related services" as transportation, and such developmental, corrective, and other supportive services (including . . . audiology services . . . and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.
20 U.S.C. § 1401(26)(A). The statute goes on to list one exception to the foregoing definition: "[t]he term [related services] does not include a medical device that is surgically implanted, or the replacement of such device." 20 U.S.C. § 1401(26)(B). Congress added this exception ("the medical device exception") when it amended the IDEA in 2004. Compl. ¶ 3.
Parts A and B of subsection 1401(26), and their application to cochlear implant mapping, form the crux of this dispute. A cochlear implant is a type of hearing aid that partially replaces the functioning of the cochlea, the part of the inner ear that converts sound waves into electrical stimuli. Id. ¶ 18; Defs.' Mot. to Dismiss or Alternatively, for Summ. J. ("Defs.' Mot.") at 8. Cochlear implants assist deaf children whose hearing deficiency is too severe for the use of a traditional hearing aid. Compl. ¶ 17. The implant has two components: the external component consists of a microphone worn at ear level and a pager-size speech processor that transmits sound to the internal component. Id. ¶ 19; Defs.' Mot. at 8-9. The internal component is a surgically implanted receiver connected to electrodes; the receiver stimulates the electrodes so that the brain receives audio signals. Compl. ¶ 20; Defs.' Mot. at 8-9. For a cochlear implant to function properly, a specialist must adjust it to ensure that it provides the optimal amount of stimulation to the auditory nerve. Compl. ¶¶ 21-22; Defs.' Mot. at 9. This process is called "mapping." Id. The first mapping session typically takes place after the receiver is surgically implanted; the implant is then calibrated to the child's unique needs through subsequent mapping sessions. Pls.' Cross-Mot. for Summ. J. & Opp'n to Defs.' Mot. to Dismiss or Alternatively, for Summ. J. ("Pls.' Mot.") at 5-6; Defs.' Mot. at 9.
The parties dispute whether the IDEA provides coverage for cochlear implant mapping. On August 14, 2006, after a notice-and-comment period, the Secretary of Education ("the Secretary"), having determined that the statute was ambiguous on this point, promulgated regulations excluding mapping from the definition of "related services." Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 34 C.F.R. § 300.34(b)(1). Although the regulations do not consider mapping services to be a required part of a FAPE, public agencies are required to "ensure that the external components of surgically implanted medical devices [i.e. cochlear implants] are functioning properly." Id. § 300.113(b)(1).
The plaintiffs, parents of children with cochlear implants who receive special education services, brought suit under the IDEA and the APA on September 6, 2007, arguing that the exclusion of mapping from the definition of "related services" contravenes the IDEA, exceeds the Secretary's rulemaking authority and is arbitrary, capricious and an abuse of discretion. Compl. ¶¶ 46-53. The defendants then filed a motion to dismiss under Rule 12(b)(6) or, alternatively, for summary judgment on December 13, 2007, contending that the plaintiffs have failed to state an IDEA claim, Defs.' Mot. at 2-3, and further, that the defendants are entitled to summary judgment on the plaintiffs' APA claim because the regulations are a permissible construction of the IDEA, id. at 3. On January 30, 2008, the plaintiffs filed an opposition to the motion to dismiss and a cross-motion for summary judgment, again urging the court to invalidate the regulations under the IDEA and the APA. See generally Pls.' Mot. The court addresses these issues in turn.
A. The Defendants' Motion to Dismiss the Plaintiffs' IDEA Claim
The plaintiffs seek relief under the IDEA. Compl. ¶¶ 46-49. Specifically, they claim that by excluding cochlear implant mapping from the definition of "related services" provided under IDEA, the defendants "enacted regulations that were not necessary to ensure compliance with the statute, that violated and contradicted provisions of IDEA, and that substantively lessened the protections provided to children with disabilities" in violation of 20 U.S.C. § 1406(a), (b)(1) and (b)(2).*fn2 Id. ¶ 49. The defendants move to dismiss the IDEA claim, asserting that the plaintiffs' failure to exhaust their administrative remedies bars their claim, Defs.' Mot. at 15 n.4; the only proper defendant to the claim is the state or local agency rather than the federal government, id. at 13; and the federal government is immune from suit under the IDEA, id. at 16-18.
1. Legal Standard for Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040(D.C. Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pre-trial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sonoma N.A., 534 U.S. 506, 511-14 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).
Yet, the plaintiff must allege "any set of facts consistent with the allegations." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1969 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-56,instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that "no set of facts in support of his claim  would entitle him to relief"); Aktieselskabet AF 21. November 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (affirming that "a complaint needs some information about the circumstances giving rise to the claims"). While these facts must "possess enough heft to 'sho[w] that the pleader is entitled to relief,'" a complaint "does not need detailed factual allegations." Twombly,127 S.Ct. at 1964, 1966. In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations -- including mixed questions of law and fact -- as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C. Cir. 2004); Browning, 292 F.3d at 242.
2. The Court Denies the Motion to Dismiss*fn3
a. The Exhaustion Requirement is Waived Because Exhaustion ...