T.M v. Cornwall Cent. Sch. Dist., No. 12-4301 (2d Cir. Apr. 2, 2014)
Abstract: A U.S. Court of Appeals for the Second Circuit three-judge panel has ruled that the Individuals with Disabilities Education Act’s least restrictive environment (LRE) requirement applies to the extended school year (ESY) component of a special education student’s individualized education plan with the same force that it applies to the school year component of the IEP. It concluded that a school district cannot escape its duty to educate a disabled student in an LRE simply because it does not offer mainstream classes as part of its ESY program.
The panel also concluded that the school district was not required to reimburse the parents for the full cost of providing the student’s pendency services–services provided during litigation–at a private placement. The school district had satisfied its duties under the IDEA when it reimbursed the parents for the cost of such services during the time when the district refused to provide the services. Thereafter, the district offered to provide the services, and when the parents rejected that offer they became responsible for the costs of the pendency services they obtained privately. However, the district court has the discretion to order reimbursement up to the amount it would have cost the school district to provide those services.
Facts/Issues: T.M., who suffers from autism, was receiving special education services from the Cornwall Central School District (CCSD). Because of the nature of T.M.’s disability, his IEP included an ESY component. In two successive proposed IEPs, CCSD’s proposed ESY placement for the summer of 2010 was in a self-contained special education classroom with no non-disabled students. The CCSD administered only two summer school programs, and neither included non-disabled students. However, during the regular school year, T.M.’s placement had been in a mainstream classroom, where he made satisfactory progress, and the school district’s proposed placement, for the regular school year following the disputed ESY placement, was again in a regular classroom. The parents rejected the proposed IEPs because they failed to provide T.M. with a free appropriate public education in a least restrictive environment, and requested a due process hearing.
The parents then enrolled T.M. in a regular mainstream kindergarten program at a private school for the 2010-11 school year. CCSD reimbursed T.M.’s parents for the amount that they spent on private services for the 2010–2011 year, and thereafter offered to provide the same services in the district. However, T.M.’s parents kept him in the private school for the 2011-12 school year and thereafter during the pendency of the litigation.
The parents filed suit in federal district court following state administrative proceedings, claiming that CCSD violated its LRE obligations by not offering a mainstreamed ESY program and that CCSD was liable for pendency services. The district court granted summary judgment in CCSD’s favor on the ESY issue. It determined that the ESY program offered by the school district did not violate the IDEA’s LRE requirement. The district court conceded that CCSD had only offered T.M. a special education summer program, not a mainstream program, but found that T.M.’s parents had “not shown that a less‐restrictive placement option was available to TM but not offered.”
However, the district court ordered the school district to reimburse the parents for pendency services. The parents appealed the ESY/LRE ruling, and CCSD appealed the pendency services ruling.
Ruling/Rationale: The Second Circuit panel vacated the district court’s decision and remanded the case for further proceedings.
The panel applied the two-prong LRE test developed in P. ex rel. Mr.. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008): “Whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child, and if not, then whether the school has mainstreamed the child to the maximum extent appropriate.”
According to the panel, while these two requirements are often in tension, in the present case there was no conflict between them. Applying the first prong of the Newington test, it found that it was undisputed that T.M. was able to achieve a satisfactory education in a regular classroom. The record clearly demonstrated that “T.M. could succeed in a normal classroom environment with the use of supplementary aids and services,” while conversely there was “nothing in the record indicat[ing] that T.M. would obtain greater educational benefits from a more restrictive setting.” At the time the district proposed the ESY placement, T.M. had already completed a satisfactory year in a mainstream classroom, and the district was proposing the same placement for the upcoming regular school year. Based on the first prong, the panel concluded that the mainstream classroom was the least restrictive environment appropriate for T.M.’s educational needs. It also concluded that the district’s proposed ESY placement violated the LRE requirement because it placed “T.M. in a more restrictive educational setting for his ESY program than his disability required.”
The CCSD argued that the LRE requirement is different for ESY programs than for regular school year programs, and that a school district violates it only if a least restrictive environment is available, and it is not offered. The CCSD maintained that because it did not have a mainstream program available, it was not required to offer a mainstream program. The panel rejected CCSD’s contention, finding that “[i]f a disabled child needs ESY services in order to prevent substantial regression, that child’s ESY placement is an integral part of his or her twelve‐month educational program.” The panel stated:
Under the IDEA, a disabled student’s least restrictive environment refers to the least restrictive educational setting consistent with that student’s needs, not the least restrictive setting that the school district chooses to make available. See Walczak v. Fla. Union Free School Dist., 142 F.3d 119, 122, (“[S]pecial education and related services must be provided in the least restrictive setting consistent with a child’s needs.”). …For ESY programs as for academic year programs, a child’s LRE is primarily defined by the nature of the child’s disabilities rather than by the placements that the school district chooses to offer.
The panel noted that the LRE statute “requires the state to ensure that ‘special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of [the] child is such that education in regular classes . . . cannot be achieved satisfactorily.’ 20 U.S.C. § 1412(a)(5)(A) (emphasis added).”
The panel supported its conclusion with reference to the LRE provision in the IDEA regulations, 34 C.F.R. § 300.115(a), which requires that a school district “must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.” That continuum must include at least “instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions. Id. § 300.115(b).”
The panel said that a school district that did not have mainstream summer programs could meet its LRE obligation by placing the student in a private program or in a program operated by another public entity. But “if a school district simply refuses to consider a sufficient continuum of possible ESY placements, and thereby denies a child a FAPE in her LRE, then it may be liable for reimbursement if the child’s parents find an appropriate placement.”
The CCSD maintained that it was unable to offer T.M. a mainstream ESY placement because: “(1) no public mainstream ESY programs existed in the area and (2) New York law prohibited it from offering T.M. a placement in a private mainstream ESY program.” The panel said that even if those arguments were factual accurate, they do not alter CCSD’s “obligation under the IDEA to consider a full continuum of alternative placements and then offer T.M. the least restrictive placement from that continuum that is appropriate for his needs. See 34 C.F.R. § 300.115(a)”
The panel noted that (1) the IDEA does not require a public school district to create any new ESY programs; (2) even if a school district fails to place a disabled student in an ESY program that satisfies LRE, the district will not be liable for tuition reimbursement unless the parents’ private placement was appropriate and the equitable considerations favor reimbursement; and (3) a school district is not required to offer every conceivable ESY environment that might suit a particular student’s LRE.
Even though CCSD violated the IDEA, it was not required to reimburse the parents unless they could prove that their alternative placement for T.M. at the private school was appropriate and that equitable considerations favor reimbursement. The panel remanded the case to the district court to address these two issues.
The panel also ruled that the district court erred by requiring the school district to continue reimbursing T.M.’s parents for pendency services that they obtained from private providers for T.M. after CCSD offered to provide those pendency services directly. The panel agreed with CCSD that at the point the school district made its offer to provide such services itself, the parents were responsible for the costs of those services when they decided to obtain them from private vendors. Even though CCSD was wrong not to initially provide the services, the IDEA did not bar the school district from correcting its mistake and offering to provide the required pendency services directly.
However, the panel said that “under the circumstances presented here, we believe it is within the district court’s authority to order [CCSD] to reimburse T.M.’s parents for pendency services up to the amount that it would have cost [CCSD] itself to provide the required pendency services from July 2011 through the end of the present school year….We leave it to the district court on remand to decide whether such a reimbursement award is appropriate, and if so, to calculate the amount that [CCSD] would have spent to provide T.M.’s pendency services directly from July 2011 through the end of the current school year.” The panel cited the following factors as legitimate considerations in the district court’s decision: reimbursement would be cost neutral to the district because the district was spared the expense of providing the services, the parents were lead to believe by the rulings from the IHO and district court that they would be entitled to reimbursement, and T.M. will presumably suffered some disruption when he transfers from his private program to CCSD’s program which may be worthy of compensation.
T.M v. Cornwall Cent. Sch. Dist., No. 12-4301 (2d Cir. Apr. 2, 2014)
[Editor's Note: As the Second Circuit panel's opinion points out, the LRE requirement is not absolute and must be balanced against the educational benefits that the disabled student will receive on a case-by-case basis. In July 2012, Legal Clips summarized a decision by a the U.S. Court of Appeals for the Third Circuit (DE, NJ, PA, VI) in L.G. v. Fair Lawn Bd. of Educ., affirming the district court’s decision granting summary judgment in favor of the school district, holding that the district did not violate the LRE requirement of IDEA when it developed an IEP that placed a disabled student in a class with other students with the same disability and did not provide for interaction with non-disabled peers. The Third Circuit panel agreed with the district court that the IDEA does not require inclusion of students with disabilities in interactions with non-disabled students if the child would not benefit from a less restrictive environment or gain from being around peers modeling appropriate behaviors.]