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Tuesday, October 28, 2008

School District May Present Draft of IEP At IEP Meeting

M.M. v. NYC Department of Education, ___F.Supp.2d___(S.D.N.Y. Oct. 20, 2008)(registration required), is an important IDEA decision. The parents claimed that their child did not receive a FAPE and that they did not have any meaningful involvement in the IEP because it was "predetermined." The court rejected this claim reasoning:

So long as they do not deprive parents of the opportunity to meaningfully participate in the IEP development process, see Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 858 (6th Cir. 2004) ("Participation must be more than a mere form; it must be meaningful.") (internal quotation marks and citation omitted, emphasis in original), draft IEPs are not impermissible under the IDEA. See, e.g., Nack ex rel. Nack v. Orange City Sch. Dist., 454 F.3d 604, 611 (6th Cir. 2006) ("'[S]chool evaluators may prepare reports and come with pre-formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions.'") (quoting N.L. v. Knox Cty. Schs., 315 F.3d 688, 694 (6th Cir. 2003)); W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 147-48 (S.D.N.Y. 2006) (stating that equating draft IEPs containing proposed placements with predetermination "will inevitably lead to gamesmanship in the preparation of IEPs by CSEs, with the district withholding points of view that ought to be out on the table and subject to discussion and parental challenge . . . prior to the document's finalization."); cf. Brennan v. Reg'l Sch. Dist. No. 1 Bd. of Educ., 531 F. Supp. 2d 245, 274 (D. Conn. 2007) (finding that a draft IEP did not violate the IDEA, although it was not altered following the CSE's receipt of additional evaluation reports, where "the district came to the [planning] meeting with a draft IEP, it looked at the new evaluation data, and it concluded that its draft IEP was appropriate."). But see T.P. v. Mamaroneck Union Free Sch. Dist., No. 06 Civ. 0509 (CLB), 2007 U.S. Dist. LEXIS 35288, at *18-19 (S.D.N.Y. May 11, 2007) (finding that school district had not come to CSE with an "open mind" and had impermissibly predetermined student's IEP where, inter alia, recommendations prepared before IEP meeting were the same as those ultimately provided, despite the Parents' disapproval).

Here, the Student's IEP and placement were not finalized until after both of the Student's IEP meetings, the Student's mother participated at the IEP meetings, she visited the Defendant's proposed placements, and she contributed to the Student's final IEP. Tr. at 85, 106-107; SRO Dec. at 16. After the initial IEP meeting on July 12, 2005, the DOE responded to the Student's mother's request by amending the Student's IEP to include a one to one paraprofessional for the Student. Tr. at 106; Pls.' Ex. E at 1; SRO Dec. at 16. Additionally, as the SRO described in detail, the IEP incorporated evaluations of the Student conducted by professionals of the Plaintiffs' choosing and the goals those professionals recommended. SRO Dec. at 13-14; IHO Dec. at 9.

Mitchell H. Rubinstein

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