OPINION AND ORDER Plaintiffs, parents of children with brain injuries (the “Student-Plaintiffs”), bring this case pursuant to the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. §1400 et seq., against the New York City Department of Education (the “DOE”) and David C. Banks in his official capacity as DOE Chancellor (together with the DOE, “Defendants”). Plaintiffs seek an injunction requiring the DOE to fund the Student-Plaintiffs’ tuition and related services at the International Academy of the Brain (“iBrain”) and attorney’s fees and costs. ECF No. 44 (“Am. Compl.” or the “Amended Complaint”). Now before the Court is Defendants’ motion to dismiss the Amended Complaint in part. ECF No. 52 (“Br.”). For the following reasons, Defendants’ partial motion to dismiss is GRANTED. BACKGROUND I. Statutory Framework Under the IDEA, states receiving federal special education funding are required to provide a free appropriate public education (“FAPE”) to children with disabilities. 20 U.S.C. §1400(d)(1)(A); see T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151 (2d Cir. 2014). To provide a FAPE to each student with a disability, a school district must develop an individualized education program (“IEP”) that is “reasonably calculated to enable the child to receive educational benefits.” Ventura de Paulino v. N.Y.C. Dep’t of Educ., 959 F.3d 519, 525 (2d Cir. 2020) (quoting T.M., 752 F.3d at 151). “The IDEA also requires states to provide an administrative procedure for parents to challenge the adequacy of their children’s IEPs.” Mendez v. Banks, 65 F.4th 56, 59 (2d Cir. 2023) (citing 20 U.S.C. §1415(b)(6)). New York has implemented a two-tier system of administrative review. N.Y. Educ. Law §4404; see Ventura de Paulino, 959 F.3d at 526. In the first tier, a parent can file an administrative due process complaint (“DPC”) challenging the IEP and requesting a hearing before an impartial hearing officer (“IHO”). Ventura de Paulino, 959 F.3d at 526. In the second tier, parties aggrieved by the IHO’s decision can appeal the case to a state review officer (“SRO”). Id.; see R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 175 (2d Cir. 2012). “Once the state review officer makes a final decision, the aggrieved party may seek judicial review of that decision in a state or federal trial court.” Ventura de Paulino, 959 F.3d at 526. Section 1415(j) of the IDEA, also known as the “stay-put” or “pendency” provision, provides that “while the administrative and judicial proceedings are pending and unless the school district and the parents agree otherwise, a child must remain, at public expense, in his or her then-current educational placement.” Id. (quotation marks and citation omitted). “The purpose of this provision is ‘to maintain the [child's] educational status quo while the parties’ dispute is being resolved.’” Abrams v. Porter, No. 20-3899, 2021 WL 5829762, at *1 (2d Cir. Dec. 9, 2021) (summary order) (quoting T.M., 752 F.3d at 152). “[A] school district is required ‘to continue funding whatever educational placement was last agreed upon for the child until the relevant administrative and judicial proceedings are complete.’” Doe v. E. Lyme Bd. of Educ., 962 F.3d 649, 659 (2d Cir. 2020) (quoting T.M., 752 F.3d at 171). The stay-put provision, however, “does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers while his administrative and judicial proceedings are pending. Instead, it guarantees only the same general level and type of services that the disabled child was receiving.” T.M., 752 F.3d at 171. Although parents “dissatisfied with their child’s education can unilaterally change their child’s placement during the pendency of review proceedings,” Ventura de Paulino, 959 F.3d at 526 (quotation marks and citation omitted), they cannot unilaterally require the school district to pay for that new school, see id. at 533 (DOE was not obligated to fund students’ placements where parents unilaterally enrolled students in new school without the DOE’s approval). Unless the parents can “persuade the school district to pay for the program’s new services on a pendency basis,” their only recourse is to “enroll the child in a new school, and then seek retroactive reimbursement from the school district after the IEP dispute is resolved.” Id. at 534. “Although the IDEA’s stay-put provision generally does not require the state to pay the costs of a new educational placement during the pendency of proceedings, parents can obtain funding for a new placement if an IHO or SRO finds it to be appropriate and issues a pendency order, and the school district does not appeal the decision.” Mendez, 65 F.4th at 59. For children with a pendency order, “the IDEA’s stay-put provision does not create an entitlement to immediate payment or reimbursement,” but “[p]arents or guardians may still be able to obtain such relief if they establish that a delay or failure to pay has jeopardized their child’s educational placement.” Id. at 63. II. Factual Background1 Plaintiffs are Sandra Lee, individually and as the parent and natural guardian of V.G., Am. Compl.
31-43, Yvonne Davis, as the legal guardian of O.C., id.
