Act means the Individuals with Disabilities Education Act, as amended. (Authority: 20 U.S.C. 1400(a)) VerDate Aug2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00217 Fmt 4701 Sfmt 4700 E:\FR\FM\14AUR2.SGM 14AUR2sr ob er ts o n P R O D 1P C 70 w ith R U LE S ED-000217 Case 1:07-cv-01583-RMU Document 11-4 Filed 12/13/2007 Page 218 of 308 46756 Federal Register / Vol.

The DOE’s Failure to Involve M.M. in a Triennial Reevaluation Significantly Impeded Her Opportunity to Participate in the Decision-Making Process Regarding J.S.’s Education The DOE’s failure to engage in a triennial reevaluation significantly impeded M.M.’s opportunity to participate in the decision-making process regarding J.S.’s education and violated Case 1:14-cv-01542-GBD Document 19 Filed 08/12/14 Page 21 of 41 16 a primary purpose of the IDEA “to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. § 1400(d)(1)(B) (emphasis added). The DOE failed to present any evidence that: 1) It notified M.M. that J.S. was due for a triennial reevaluation, see 20 U.S.C. § 1414(b)(1); 2) A multidisciplinary team reviewed the available information and data on J.S., see 20 U.S.C. § 1414(c)(1)(A)(i); 3) It contacted M.M. to seek her input in deciding whether additional data was required, see 20 U.S.C. § 1414(c)(1)(B); 4) It notified M.M. of any determination that no additional data was needed, see 20 U.S.C. § 1414(c)(4)(A)(i); 5) It notified M.M. of her right to request an assessment to determine J.S.’s educational needs, see 20 U.S.C. § 1414(c)(4)(A)(ii); or 6) It agreed with M.M. that a reevaluation was not necessary, see 20 U.S.C. § 1414(a)(2)(B)(ii), 8 N.Y.C.R.R. § 200.4(b)(4).

See Schwartz, 7 N.Y.3d at 432. The IDEA was enacted for the benefit of children with disabilities and their parents rather than school districts, see 20 U.S.C. §§ 1400(c), (d); H.R. Rep. No. 105-95 (1997), reprinted in 1997 U.S.C.C.A.N. 78, 79-82, and the many procedural safeguards set forth in the IDEA are intended to enable parents to ensure the education of their children with disabilities in the 39 least restrictive environment appropriate.

See, e.g., Cedar Rapids Community School Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66, 73-79 (1999); Irving Independent School Dist. v. Tatro, 468 U.S. 883, 891 (1984); Smith v. Robinson, 468 U.S. 992, 1017-18 n.20 (1984); Board of Educ. of Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S. 176, 192 (1982); Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 125 (ist Cir. 2003); Ridgewood Bd. ofEduc. v. N.E. ex rel. ME., 172 F.3d 238, 253 (rd Cir. 1999); 20 U.S.C. §§ 1400(d), 1401(26)(A), 1414(d); 34 C.F.R. §§ 104.33(b)(1), 104.33(c)(1). In so doing, Section 504, the Americans with Disabilities Act, and the IDEA require schooldistricts to administer insulin to students with diabetes, not merely to provide them with some “reasonable accommodation”of their own choosing.

When Congress amended the IDEA in 2004, Pub. L. No. 108-446, (codified at 20 U.S.C. §§ 1400 et seq.), it amended the provision defining related services. The amended definition of related services “does not include a medical device that is surgically implanted, or the replacement of such device.”

See Amended Complaint (“Compl.”), dated March 29, 2013, at ¶ 4. It brings this action under 42 U.S.C. § 1983 (“§ 1983”) and the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., challenging NYSED’s findings concerning Case 1:13-cv-01613-PAE Document 11 Filed 04/23/13 Page 7 of 27 2 its placement of students with disabilities and NYSED’s directive requiring ERCSD to “cease and desist its practice of routinely allowing one [ERCSD] representative to unilaterally determine the placement for students with disabilities and override [Committee on Special Education least restrictive environment] placement recommendations.” See Compl. at ¶¶ 2, 35, 56; Compl., Exhibit A (Letter from James P. DeLorenzo to Joel Klein, dated December 19, 2012).

We Shall affirm the judgment and peremptory writ of mandate issued by the trial court. PROCEDURAL BACKGROUND Federal law prohibits discrimination against students with disabilities through three federal acts: the Rehabilitation Act of 1973 (29 U.S.C. § 794) (Section 504), the Americans with Disabilities Education Act (42 U.S.C. § 12132), and the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.) as amended by the Individuals with Disabilities Education Improvement Act of 2004 (Pub.L.No. 108-446, (Dec. 3, 2004) 118 Stat. 2647) (IDEA). Federal law recognizes students with disabilities have a right to receive a free appropriate public education, including related aids and services necessary for them to access that education.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT Defendant, through counsel, respectfully moves this Court pursuant to Fed. R. Civ. P. 56, for an order of judgment in its favor in the above-captioned case. As established by the administrative record and the accompanying supporting memorandum, the challenged administrative determination under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq., was appropriate. Summary judgment should be granted for Defendant, because Plaintiffs had a right to independent evaluations, which they failed to exercise, and consequently Plaintiffs submitted no evaluative data to support their request for compensatory education.

See Plaintiff’s complaint filed on September 7, 2016, at ¶¶ 1, 5 and page 11 [1]. In her complaint, Plaintiff alleges that the District of Columbia Public Schools (DCPS) violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq., and denied C.S. a free appropriate public education (FAPE) (1) by failing to conduct a comprehensive evaluation in July 2015, Id. at ¶¶ 54-57; and (2) by failing to make an appropriate eligibility determination in July 2015.

That history includes the fact that, prior to the passage of the IDEA’s predecessor, the Education of the Handicapped Act “undiagnosed disabilities prevented the children from having a successful educational experience.” 20 U.S.C. §1400(c)(2)(C). As part of that program, the Defendant, as local educational agency (“LEA”), is responsible for providing a FAPE to its students with disabilities.