The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
MEMORANDUM OPINION & ORDER
Plaintiffs M.M. and H.M. bring this action on behalf of their disabled son, J.M., against Defendants New York City Department of Education ("NYCDOE"), NYCDOE Chancellor Joel Klein ("Chancellor Klein"), New York State Education Department ("SED") and Impartial Hearing Officer Esther Mora (" IHO Mora") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, and 42 U.S.C. § 1983.*fn1 The IDEA's so-called "stay put" or "pendent placement" provision requires, in general, that a disabled student remain in his or her "then-current educational placement" while administrative proceedings relating to the student's education are pending. 20 U.S.C. § 1415(j). Plaintiffs seek reimbursement under the stay-put provision for education expenses they incurred on J.M.'s behalf while an administrative challenge to his placement was ongoing. In addition to their reimbursement claim, Plaintiffs seek damages, equitable relief and attorneys' fees.
The SED moves to dismiss the Complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim under Rule 12(b)(6). The NYCDOE and Chancellor Klein (together, "City Defendants") move to dismiss for lack of subject matter under Rule 12(b)(1). In addition to other arguments, the SED contends that Plaintiffs' damages claims are barred by the Eleventh Amendment and that Plaintiffs lack standing to pursue injunctive relief. The City Defendants and the SED both argue that Plaintiffs' claims should be dismissed for failure to exhaust administrative remedies. For the reasons that follow, the motions to dismiss are GRANTED.*fn2
The primary object of the IDEA is to provide disabled students with a "free appropriate public education" ("FAPE"). 20 U.S.C. § 1400(d)(1)(A).*fn3 A FAPE consists of publicly funded "special education and related services," that "include an appropriate . . . education," and "are provided in conformity with an individualized education program." 20 U.S.C. § 1401(9). Educators and the parents of a child covered by the IDEA must jointly develop an individualized education program ("IEP") for each year of the child's education. See Polera v. Bd. Of Educ. Of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 482 (2d Cir. 2002); 20 U.S.C. §§ 1401(14), 1414(d). The IEP "must include an assessment of the child's current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide." Shafer v. Weast, 546 U.S. 49, 53 (2005) (citing 20 U.S.C. § 1414(D)(1)(A)). In New York City, the NYCDOE "is charged with providing a FAPE to all students with disabilities between the ages of 3 and 21 who reside in the City, and to develop the IEP for these students by convening local Committees on Special Education." A.D. v. Bd. of Ed. of the City Sch. Dist. of the City of New York, 690 F. Supp. 2d 193, 197 (S.D.N.Y. 2010) (citing N.Y. Educ. Law. § 4402).
The IDEA requires states to afford the parents of a disabled student "an array of procedural safeguards designed to help ensure the education of their child." Polera, 288 F.3d at 482 (citing 20 U.S.C. § 1415(a)). "Foremost among the procedural safeguards," Heldman v. Sobol, 962 F.2d 148, 150 (2d Cir. 1992), is the right to seek an administrative "impartial due process hearing." 20 U.S.C. § 1415(f). Parents are "entitled to request a due process hearing in order to present complaints as 'to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.'" Cave v. E. Medow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008) (quoting 20 U.S.C. 1415(b)(6)(A)). If the due process hearing is "conducted by a local educational agency, any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency." 20 U.S.C. § 1415(g)(1). On appeal, the state educational agency is required to "conduct an impartial review of the findings and decision" and render "an independent decision upon completion of such review." 20 U.S.C. § 1415(g)(2).
In compliance with the requirements of Section 1415 of the IDEA, "New York State has implemented a 'two-tier system of administrative review.'" Mackey v. Bd. Of Educ. For the Arlington Cent. Sch. Dist., 386 F.3d 158, 160 (2d Cir. 2004) (quoting Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002)). At the first level of review, an impartial hearing officer ("IHO") appointed by the local board of education conducts a due process hearing. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007) (citing N.Y. Educ. Law § 4404(1)). Following the decision of the IHO, an aggrieved party may appeal to a state review officer ("SRO"). N.Y. Educ. Law § 4404(2). "After exhausting this two-step administrative process, any party still aggrieved may bring a civil action challenging the decision in federal or state court." R.B. v. New York City Dept. of Educ., __ F. Supp. 2d __, No. 09 Civ. 7758(RJS), 2010 WL 1948312, at *1 (S.D.N.Y. May 5, 2010) (citing 20 U.S.C. § 1415(i)(2)(A); N.Y. Educ. Law § 4404(3)).
With one exception not relevant here, the IDEA's stay-put provision provides: "[D]uring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child . . . until all such proceedings have been completed." 20 U.S.C. § 1415(j); see also N.Y. Educ. Law § 4404(4)(a) (providing for same result). If the student's "current educational placement" is in private school, the responsibility for private school tuition "stays put" as well. Thus, if the district has been paying for private school tuition, the district must continue to do so until the moment when the child's pendency changes -- either when there is an agreement between the parents and the district, or when an SRO hands down a pendency-altering decision.
New York City Dept. of Educ. v. S.S., No. 09 Civ. 810(CM), 2010 WL 983719, at *6 (S.D.N.Y. Mar. 17, 2010). Section 1415(j) represents "Congress' policy choice that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved." Mackey, 386 F.3d at 160-61 (quoting Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir. 1996)).
J.M. is nine years old and has been diagnosed with autism. (Compl. ¶ 2). He also "presents with a number of other disabilities, such as apraxia of speech (an expressive and receptive language disorder), motor feeding delays, sensory processing issues and gross and fine motor planning." (Id.) During the 2006-2007 school year, J.M. attended the McCarton Center ("McCarton"), a private school that focuses on educating autistic children. (Findings of Fact and Decision dated 3/3/2008 ("FOF&D 3/3/2008") at 3, Compl., Ex. 1; Compl. ¶ 19). Pursuant to the decision of an IHO, Plaintiffs were reimbursed for the cost of tuition. (FOF&D 3/3/2008 at 3). In an IEP for the 2007-2008 school year, the NYCDOE recommended that J.M. be placed in public school. (Id.) Plaintiffs challenged the IEP, and a due process hearing was held before IHO James McKeever ("IHO McKeever"). (Id.; Compl. ¶ 17). Plaintiffs argued that the IEP failed to offer a FAPE because the proposed placement would not sufficiently address J.M.'s educational needs. (FOF&D 3/3/2008 at 3). IHO McKeever agreed with Plaintiffs, and in a written decision dated March 3, 2008, found McCarton to be an appropriate placement for J.M. (Id. at 5; Compl. ¶¶ 17-18).
IHO McKeever ordered the NYCDOE to reimburse Plaintiffs for the cost of J.M.'s tuition at McCarton for the 2007-2008 school year. (FOF&D 3/8.2008 at 6). The NYCDOE was also ordered to reimburse Plaintiffs for all expenses incurred in connection with J.M.'s home based applied behavioral analysis ("ABA"), which included 10 hours per week of extended day one-on-one ABA services, parent training and supervision. (Id.) Moreover, the NYCDOE was directed to provide J.M. with one-onone 45 minute speech and language therapy sessions three times per week. (Id.) The NYCDOE did not appeal IHO McKeever's decision. (Compl. ¶ 20).
In an IEP for the 2008-2009 school year, the NYCDOE recommended that J.M. be placed in a program similar to the one recommended in the IEP for 2007-2008. (Letter titled Demand for Due Process and Pendency dated 9/3/2008 ("9/3/2008 Letter") at 2, Compl., Ex. 2). Plaintiffs objected to the IEP and their attorney sent the NYCDOE a letter dated September 3, 2008 requesting a due process hearing. (Id. at 1; Compl. ¶ 21). The letter, which is titled "Demand for Due Process and Pendency," states that Plaintiffs are entitled to "pendency" pursuant to IHO McKeever's decision of March 3, 2008. (9/3/2008 Letter at 1; Compl. ¶ 22). After describing the placement ordered by IHO McKeever, the letter explains that "[i]f the DOE fails to comply with . . . [J.M.'s] automatic right to pendency under the IDEIA's federal mandates, we request an immediate pendency hearing." (9/3/2008 Letter at 1). As to the merits of the IEP, the letter states that the NYCDOE's recommended placement for the 2008-2009 school year failed to offer J.M. a FAPE. (Id. at 2). In its answer to Plaintiffs' demand for a due process hearing, the NYCDOE did not contest J.M.'s right to pendency reimbursement. (Compl. ¶ 23; Answer dated September 11, 2008, Compl., Ex. 3).
The parties were unable to resolve their differences and a due process hearing was held before IHO Mora. (Compl. ¶ 24). On the first day of the hearing, the NYCDOE did not object to Plaintiffs' pendency request. (Hearing Transcript at 6:11-12, Compl., Ex. 4 ("The District's position is that there's no objection to pendency"); Compl. ¶ 25). Later in the hearing, Plaintiffs' counsel explained to IHO Mora that "[o]n the first hearing date, it was a pendency hearing, and I still haven't received the pendency order. There was no objection by the DOE, and I -- . . . -- I have no -- I -- so the parent[s] can't get reimbursed or -- without a pendency order." (Hearing Transcript at 383:3-10; Compl. ¶ 26). IHO Mora responded, "All right. Noted." (Hearing Transcript at 383:11-12). IHO Mora, however, never issued an order requiring the NYCDOE to provide Plaintiffs with pendency reimbursement. (Compl. ¶ 27).
On February 12, 2009, IHO Mora issued a written decision rejecting Plaintiffs' objections and upholding J.M.'s IEP for the 2008-2009 school year. (Findings of Fact and Decision dated 2/12/2009 ("FOF&D 2/12/2009") at 9, Compl., Ex. 1; Compl. ¶ 28). IHO Mora concluded that the NYCDOE's recommended placement "was reasonably calculated to confer educational benefit and thus, offered the student a FAPE." (FOF&D at 9). The decision makes no mention of Plaintiffs' request for pendency reimbursement, but at the end states that "I have examined the parties remaining contentions and find that it is unnecessary to reach them for the reason set forth above or because they are not disputed issues." (Id.) As required, see N.Y. Comp. Codes R. & Regs. tit. 8, ...