OPINION & ORDER Plaintiffs Elizabeth and Dore Abrams, proceeding individually and on behalf of their child A.A., seek a preliminary injunction ordering the Defendants to implement Impartial Hearing Officer Jeffrey J. Schiro’s Interim Order on Pendency (“IOP”) dated April 22, 2019 and ordering Defendant New York City Department of Education (“DOE”) to fund A.A.’s placement at International Institute for the Brain (“iBRAIN”) during the pendency of the underlying due process proceedings. For the reasons that follow, the Court GRANTS Plaintiffs’ application.I. BackgroundA.A. is a 20-year-old student who suffers from global developmental impairments as a result of a traumatic brain injury. Ashanti Decl., Dkt. No. 15 2. This action arises out of A.A.’s parents’ efforts, individually and on her behalf, to secure funding for an educational placement suitable to A.A.’s highly intensive management needs.A. Statutory and Regulatory BackgroundUnder the Individuals with Disabilities Education Act (“IDEA”), local educational agencies like the DOE are responsible for making a Free Appropriate Public Education (“FAPE”) available within their jurisdictions to children with disabilities between the ages of 3 and 21. 20 U.S.C. §1412(a)(1). To ensure that qualifying children receive such a FAPE, “a school district must create an individualized education program (‘IEP’) for each such child.” M.O. v. N.Y.C. Dep’t of Educ., 793 F.3d 236, 239 (2d Cir. 2015) (quotation omitted). But “[p]arents who believe that a FAPE is not being provided to their child may unilaterally enroll the child in a private school and seek tuition reimbursement from the school district by filing what is known as a due process complaint,” triggering “an administrative procedure by which the board of education appoints an Independent Hearing Officer (“IHO”) who conducts a formal hearing and fact-finding.” Id. (quotation omitted). When parents pursue this option, the IHO is responsible for determining whether “(1) the proposed IEP failed to provide the student with an appropriate public education; (2) the parent’s private placement was appropriate to the child’s needs; and (3) equitable considerations support the parent’s claim.” Reyes ex rel. R.P. v. N.Y.C. Dep’t of Educ., 760 F.3d211, 215 (2d Cir. 2014). An IHO’s decision may be appealed to the state educational agency for an impartial review by a State Review Officer (“SRO”), and an SRO’s decision may be challenged by filing a civil action in either state or federal court. Id.While the administrative and judicial proceedings described above are ongoing, under the “pendency” or “stay-put” provisions of the IDEA and New York law, “unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child,” 20 U.S.C. §1415(j); N.Y. Educ. Law §4404(4)(a) (similar); preserving “the educational status quo while the parties’ dispute is being resolved,” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 152 (2d Cir. 2014). Accordingly, an IHO may hold a hearing and issue an Interim Order on Pendency (“IOP”) making findings concerning a student’s pendency placement in advance of making final findings of fact and decision on her due process complaint. See, e.g., S.G. v. Success Academy Charter Schs., Inc., No. 18-CV-2484 (KPF), 2019 WL 1284280, at *6 (S.D.N.Y. Mar. 20, 2019); M.M. ex rel. J.M. v. N.Y.C. Dep’t of Educ., No. 09-CV-5236 (PAC), 2010 WL 2985477, at *11 (S.D.N.Y. July 27, 2010).B. Factual BackgroundThe pertinent facts of this case are not in dispute, and are drawn from the parties’ submissions, including the Plaintiffs’ submission of two written opinions of the Independent Hearing Officer who presided over A.A.’s two due process complaints. See July 13, 2018 Findings of Fact and Decision (“July 2018 FOFD”), Dkt. No. 15-2; Apr. 22, 2019 Interim Order on Pendency, Dkt. No. 15-6 (“2019 IOP”).A.A. has been classified as a student with a disability since at least 2016. See July 2018 FOFD at 5. Plaintiffs’ request for a preliminary injunction arises out of issues concerning her placements for the 2017-2018 and 2018-2019 school years.For the 2017-2018 school year, A.A.’s parents notified DOE that they intended to unilaterally place A.A. in a program at the International Academy of Hope (“iHOPE”). Id. at 6. On November 17, 2017, A.A.’s parents filed a due process complaint alleging that the DOE had failed to provide A.A. with a FAPE for the 2017-2018 school year and seeking funding for her placement at iHOPE; shortly thereafter, they moved for an interim order on A.A.’s pendency placement. Id. at 4, 7. On January 3, 2018, IHO Jeffrey Schiro issued an Interim Order on Pendency directing DOE to fund A.A.’s placement at iHOPE until the due process proceedings concluded. Id. at 3. And on July 13, 2018, IHO Schiro issued Findings of Fact and Decision finding that DOE had failed to provide A.A. with a FAPE for the 2017-2018 school year, that iHOPE was an appropriate placement, and that the equities favored the parents. Id. at 12-17. Accordingly, IHO Schiro granted A.A.’s parents’ claim for reimbursement and/or direct payment of tuition and related services at iHOPE. Id. at 17. Neither party appealed the July 2018 FOFD. Compl., Dkt. No. 1. 11.On June 21, 2018, shortly before IHO Schiro issued the July 2018 FOFD, A.A.’s parents informed DOE that they intended to enroll A.A. in the International Institute for the Brain (“iBRAIN”) for the 2018-2019 school year. Ashanti Decl. 7. On July 9, 2018, A.A. began attending iBRAIN and her parents filed a new due process complaint alleging that DOE did not provide A.A. with a FAPE for the 2018-2019 school year and seeking, among other things, an interim order requiring the DOE to fund A.A.’s placement at iBRAIN. Id.
8-9. On April 22, 2019, IHO Schiro issued a new Interim Order on Pendency (the “2019 IOP”) finding the program available at iBRAIN substantially similar to the program available at iHOPE and requiring the DOE to fund A.A.’s placement at iBRAIN from the date the 2018 due process complaint was filed until the conclusion of the due process proceedings. 2019 IOP at 12-21, 23-24.On May 7, 2019, the DOE served A.A.’s parents with a Notice of Intention to Seek Review of the 2019 IOP with the State Review Office. Compl. 19. According to Plaintiffs, it has not yet filed this appeal, nor has it offered any pendency placement or pendency-related services to A.A or sought a stay of the IOP. See id.
