OPINION AND ORDER
1. INTRODUCTION
The parents of three autistic children bring this action against the New York City Department of Education and other defendants (“the City”), alleging a failure to provide adequate special education services to their children in violation of the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 42 U.S.C. § 1983, the Due Process Clause of the Fourteenth Amendment, the New York State Constitution, and several New York State education laws and regulations. Plaintiffs also allege that the City employs unlawful policies and practices regarding the provision of services to autistic children on a systemic basis.
On July 9, 2013, Y.T. and his parents, M.G. and V.M. (“the Y.T. plaintiffs”) sought a preliminary injunction to compel the City to provide certain services to Y.T. during the pendency of his administrative proceedings. On August 1, 2013, I granted plaintiffs’ motion with respect to the 1:1 applied behavioral analysis (“ABA”) home services, which I concluded were part of Y.T.’s then-current educational placement. As such, the ABA services constituted pen-dency services exempt from administrative exhaustion.
On July 25, 2013, plaintiffs amended their complaint to add E.H. and his mother M.W. (“the E.H. plaintiffs”), and D.D. and his mother A.D. (“the D.D. plaintiffs”). Although the City did not contest the pen-dency services requested by the E.H. and D.D. plaintiffs, the hearing officer assigned to their cases refused to sign the requested pendency orders.
The City now moves to dismiss the First Amended Complaint (“FAC”) on the grounds that plaintiffs have failed to exhaust their administrative remedies in accordance with the IDEA and cannot demonstrate that exhaustion should be excused. The City also moves to dismiss the claims implicating state administrative procedures unless New York State is joined as a necessary party under Rule 19 of the Federal Rules of Civil Procedure. Finally, the City moves to dismiss Y.T.’s claims from the 2008-2009, 2009-2010, and 2010-2011 school years as time-barred under the IDEA’S statute of limitations. For the reasons that follow, the City’s motion is granted in part and denied in part.
II. BACKGROUND
A. The IDEA
The IDEA requires participating states to provide disabled children with a
B. Summary of Administrative Proceedings
1. Y.T.
Y.T. is an eleven-year-old boy who entered the public school system after moving to New York City from Egypt in 2008.
On March 25, 2013, plaintiffs appealed the IHO’s decision to NYSED.
On July 3, 2013, the Y.T. plaintiffs filed another due process complaint challenging the recommendations made for Y.T. for the 2012-2013 and 2013-2014 school years.
2. E.H.
E.H. is a student classified with autism who has received special education services from the City since the 2009-2010
3. D.D.
D.D. is a student classified with autism who has received special education services since at least 2010.
III. STANDARD OF REVIEW
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must “ ‘accept[ ] all factual allegations in the complaint as true, and draw[ ] all reasonable inferences in the plaintiffs favor.’ ”
The court evaluates the sufficiency of the complaint under the “two-pronged approach” suggested by the Supreme Court in Ashcroft v. Iqbal.
IV. APPLICABLE LAW
A. Exhaustion of Administrative Remedies
The IDEA requires exhaustion of administrative remedies prior to judicial review.
In the Second Circuit, exhaustion may be excused in “cases involving systemic violations that [cannot] be remedied by local or state administrative agencies ‘because the framework and procedures for assessing and placing students in appropriate educational programs [is] at issue.’ ”
Exhaustion may also be excused where the local educational agency failed to notify parents of their due process rights and thereby “deprived [them] of the opportunity to take advantage of the procedural safeguards offered by the statute.”
B. Joinder of Necessary Parties
Failure to join a necessary party in accordance with Rule 19 can be
C. Statute of Limitations
Under the IDEA, a parent’s due process complaint must be filed “within 2 years of the date [the parent] knew or should have known about the alleged action that forms the basis of the complaint.”
The IDEA’S statute of limitations is an affirmative defense rather than a jurisdictional prerequisite.
y. DISCUSSION
A. Exhaustion Is Excused for Plaintiffs’ Systemic Claims
In addition to challenging certain aspects of their IEPs, plaintiffs seek a declaratory judgment that some of the City’s policies and practices regarding the provision of services to autistic children are unlawful. They also seek a permanent injunction prohibiting the application of those policies to their children in the future.
Specifically, plaintiffs allege that: 1) the City refuses to include certain services on any IEP regardless of the student’s needs, and parents can only obtain such services through due process hearings;
Although IHOs and SROs have the authority to order wide-ranging relief for individual children in a specific school year, they have no power to alter the City’s policies or general practices and cannot issue prospective relief. Because plaintiffs have plausibly alleged violations that the administrative process has “no power to correct,” exhaustion would be inadequate or futile.
B. Exhaustion Is Excused for Y.T. Based on Excessive Administrative Delay
Plaintiffs further argue that exhaustion should be excused for Y.T. on the basis of lengthy administrative delays. Under the applicable federal regulations, IHOs have forty-five days to issue a final decision, while SROs have thirty.
Furthermore, I take judicial notice that a proposed class action settlement agreement is currently before Judge Paul Gar-dephe of this Court addressing delays in due process hearings for special needs children. The proposed settlement provides that IHO decisions will be deemed fully exhausted if the SRO has not issued a decision within seventy-five days of the parties’ final submission.
Similarly, Y.T.’s second due process complaint regarding the 2012-2013 and 2013-2014 school years has been pending at the IHO level since July 3, 2013, and the hearing still has not commenced.
Plaintiffs do not argue that E.H. and D.D. should be excused from exhaustion based on administrative delay. D.D. prevailed at the IHO level after a timely hearing process.
C. New York State Is a Necessary Party to Certain Claims
Several of plaintiffs’ claims implicate state-level procedures. For instance, plaintiffs allege excessive delays and systemic bias at the SRO level.
D. Y.T.’s Claims Are Not Barred by the Statute of Limitations
The City argues that Y.T.’s claims regarding the 2008-2009, 2009-2010, and 2010-2011 school years are barred by the IDEA’S two-year statute of limitations. However, the City raised this issue for the first time on appeal to the SRO.
Even if the City is not deemed to have waived the statute of limitations defense, plaintiffs allege that they did not receive due process notices in their native language as required by the IDEA.
VI. CONCLUSION
For the foregoing reasons, the City’s motion to dismiss is granted with respect to the individual claims of E.H. and D.D. The motion is denied with respect to Y.T. as well as the systemic claims asserted by the other plaintiffs. Plaintiffs are ordered to join the State of New York within thirty (30) days or their claims challenging state administrative procedures will be dismissed. The Clerk of the Court is directed to close this motion [Docket Entry No. 25]. A conference is scheduled for February 20, 2014 at 4:30 pm.
SO ORDERED.
. See M.G. v. New York City Dep’t of Educ., No. 13 Civ. 4639, 982 F.Supp.2d 240, 248-50, 2013 WL 3974165, at *5-6 (S.D.N.Y. Aug. 1, 2013).
. See id.
. See First Amended Complaint (“FAC”) ¶ 363.
. See 20 U.S.C. §§ 1400(d)(1)(A), 1401(9), 1414(d)(4)(A) (2010).
. See id. § 1415(f).
. See N.Y. Educ. Law § 4404(1) (McKinney 2007).
. 20 U.S.C. § 1415(g).
. See id. § 1415(i)(2)(A).
. See FAC ¶¶ 1, 42.
. See id. ¶ 33.
. See id. ¶ 198.
. See id. ¶¶ 201, 207, 209.
. See id. ¶ 219.
. See M.G., 2013 WL 3974165, at *6 ("[Pjlaintiffs submitted their last filing in that review on July 1, and briefing should have been fully submitted as of July 22.”).
. See Plaintiffs' Memorandum of Law in Opposition to Defendants’ Motion to Dismiss ("PI. Mem.”) at 3-4.
. See id. at 4; Defendants’ Memorandum of Law in Support of Their Motion to Dismiss the First Amended Complaint ("Def. Mem.”) at 4.
. See Def. Mem. at 4.
.See PL Mem. at 5.
. See FAC ¶¶ 10, 274.
. See id. ¶¶ 274, 276, 280.
. See id. ¶¶ 287-288.
. See Def. Mem. at 5.
. See FAC ¶¶ 241-242.
. See id. ¶¶ 242, 246.
. See id. ¶¶ 243, 244, 248, 249, 250.
. See id. ¶¶ 255; PL Mem. at 6.
. See PL Mem. at 6.
. Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir.2011) (quoting Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir.2009)).
. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010).
. See 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
. Id. at 679, 129 S.Ct. 1937.
. Id. at 678, 129 S.Ct. 1937.
. Id. at 679, 129 S.Ct. 1937.
. Id. at 678, 129 S.Ct. 1937.
. Id. (quotation marks omitted).
. See 20 U.S.C. § 1415(i)(2)(A).
. Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988).
. See id. See also Polera v. Board of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 n. 8 (2d Cir.2002).
. Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240, 249 (2d Cir.2008) (quoting J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 114 (2d Cir.2004)).
. Dean v. School Dist. of City of Niagara Falls, N.Y., 615 F.Supp.2d 63, 71 (W.D.N.Y.2009) (quoting Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir.1987)).
. Weixel v. Board of Educ. of N.Y., 287 F.3d 138, 147 (2d Cir.2002) (quotation marks and citations omitted).
. See Frutiger v. Hamilton Cent. Sch. Dist., 928 F.2d 68, 74 (2d Cir.1991) (noting that "if state administrative bodies persistently fail to render expeditious decisions as to a child’s educational placement, district courts have the power under § 1415(e)(2) to assume jurisdiction over the review process on the grounds that exhaustion would be futile or inadequate....”). See also Mackey ex rel. Thomas M. v. Board of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 162 n. 3 (2d Cir.2004) (noting district court's finding, unchallenged on appeal, that exhaustion was excused based on SRO delay of almost a year).
.See McAdams v. Board of Educ. of Rocky Point Union Free Sch. Dist., 216 F.Supp.2d 86, 95 (E.D.N.Y.2002) (excusing exhaustion where appeal had been pending at SRO level for almost two years); Adrian R. ex rel. Esther D. v. New York City Bd. of Educ., No. 99 Civ. 9064, 2001 WL 77066, at *6 n. 6 (S.D.N.Y. Jan. 30, 2001) (exhaustion excused where SRO's decision was delayed by eight months); Sabatini v. Corning-Painted Post Area Sch. Dist., 78 F.Supp.2d 138, 140 (W.D.N.Y.1999) (excusing exhaustion where no decision had been issued by SRO more than two months after notice of appeal was filed).
. See Fed.R.Civ.P. 12(b)(7).
. Fed.R.Civ.P. 19(a)(1)(A).
. Fed.R.Civ.P. 19(b).
. 20U.S.C. § 1415(f)(3)(C).
. See id, § 1415(f)(3)(D).
. See, e.g., Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 111 (2d Cir.2008) (calling IDEA'S statute of limitations an affirmative defense); In re S. Afr. Apartheid Litig., 617 F.Supp.2d 228, 287 (S.D.N.Y.2009) (“Statute of limitations defenses are affirmative defenses, which normally cannot be decided on a motion to dismiss.”).
. See In re Benedict, 90 F.3d 50, 54 (2d Cir.1996) (noting that "[sjtatutory filing deadlines are generally subject to the defenses of waiver, estoppel, and equitable tolling”) (quotation marks and citations omitted); R.B. ex rel. A.B. v. Department of Educ. of City of N.Y., No. 10 Civ. 6684, 2011 WL 4375694, at *5-7 (S.D.N.Y. Sept. 16, 2011) (considering IDEA’S statute of limitations to be an affirmative defense and noting that "a party’s failure to raise an argument during administrative proceedings generally results in a waiver of that argument”). But see S.W. v. New York City Dep’t of Educ., 646 F.Supp.2d 346, 361 (S.D.N.Y.2009) (considering arguments raised by DOE for the first time before the SRO).
. Apartheid, 617 F.Supp.2d at 287 (quotations and citations omitted).
. See FAC at 53-56.
. See id. ¶¶254, 321-323, 329, 330-333, 335-336, 338, 344.
. See id. ¶¶ 327, 345-348.
. See id. ¶¶ 259, 303-309.
. See id. ¶¶ 179, 185, 189.
. See id. ¶ 386.
. See id. ¶ 184.
. See id. ¶¶ 355-356, 385.
. See id. ¶¶ 364-388.
. J.S., 386F.3datll3.
. See 34 C.F.R. § 300.515 (2006).
. See FAC ¶ 219.
. See M.G., 982 F.Supp.2d at 249-50, 2013 WL 3974165, at *6.
. See 7/8/13 Hearing Transcript, U.A. v. NYSED, No. 13 Civ. 3077, Dkt. No. 24 (S.D.N.Y. July 24, 2013), Ex. F to 12/3/13 Declaration of Elisa Hyman, plaintiffs’ attorney, at 3, 14.
. See Proposed Settlement Agreement ¶ IV(5), Ex. A to 1/10/14 Letter from Assistant Attorney General Michael Klekman, U.A. v. NYSED, No. 13 Civ. 3077, Dkt. No. 75 (S.D.N.Y. Jan. 10, 2014).
. See PL Mem. at 5.
. Because exhaustion is excused for Y.T. on the basis of administrative delay, I need not address his argument that exhaustion should be excused due to the City’s alleged failure to provide his parents with due process notices.
. See PL Mem. at 6.
. See Def. Mem. at 5.
. If the E.H. plaintiffs provide more information about the cause of the delay, I am willing to reconsider this ruling.
. See FAC ¶¶ 355-356, 364-388.
. See Def. Mem. at 20 n. 8.
. See id.
. See Somoza, 538 F.3d at 111; R.B., 2011 WL 4375694, at *5-7.
. See FAC ¶¶ 23-27; 20 U.S.C. § 1415(b)(3)-(4) (requiring the local educational agency to provide parents with due process notices in their native language whenever the agency proposes a change, or refuses a change, in the child’s educational program).
. See 20 U.S.C. § 1415(f)(3)(D).