T.M. v. Cornwall Cent. Sch. Dist.

• Decision Date: 02 April 2014
• Docket Number: 12–4484(XAP).,Docket Nos. 12–4301
• Citation: 752 F.3d 145
• Parties: T.M., by A.M. and R.M., his parents, Plaintiff–Appellant–Cross–Appellee, v. CORNWALL CENTRAL SCHOOL DISTRICT, Defendant–Appellee–Cross–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

752 F.3d 145

T.M., by A.M. and R.M., his parents, Plaintiff–Appellant–Cross–Appellee,

v.CORNWALL CENTRAL SCHOOL DISTRICT, Defendant–Appellee–Cross–Appellant. ^*

Docket Nos. 12–4301, 12–4484(XAP).

United States Court of Appeals, Second Circuit.

Argued: Oct. 22, 2013.

Decided: April 2, 2014.

Gary S. Mayerson (Tracey Spencer Walsh & Maria C. McGinley, on the brief), Mayerson & Associates, New York, NY, for Plaintiff–Appellant–Cross–Appellee.

Christopher P. Langlois (Karen S. Norlander, on the brief), Girvin & Ferlazzo, P.C., Albany, NY, for Defendant–Appellee–Cross–Appellant.

Before: KATZMANN, Chief Judge, KEARSE and WESLEY, Circuit Judges.

KATZMANN, Chief Judge:

This case calls upon us to determine how the least restrictive environment (“LRE”) provision of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400–1482,¹ applies to extended school year (“ESY”) placements for children who need twelve-month educational programs.

Plaintiff–Appellant–Cross–Appellee T.M. is a child with autism. His parents claim on his behalf that Defendant–Appellee–Cross–Appellant Cornwall Central School District (“Cornwall”) violated the IDEA by denying T.M. a free appropriate public education (“FAPE”) in his LRE. They also claim that Cornwall must reimburse them for the cost of certain educational services, called pendency services, that they obtained for him from private providers. These services are intended to ensure that T.M. will remain in the same educational placement while the current proceedings are pending. See20 U.S.C. § 1415(j).

The United States District Court for the Southern District of New York (Briccetti, J.) granted summary judgment for Cornwall, finding that Cornwall had offered T.M. a FAPE in the appropriate LRE. However, the district court also ordered Cornwall to reimburse T.M.'s parents for the full cost of the privately-obtained pendency services. T.M.'s parents appeal the grant of summary judgment, arguing primarily that Cornwall violated the IDEA's LRE requirement because it did not offer to place T.M. in a mainstream classroom for his extended school year program. Cornwall cross-appeals on the pendency services issue.

We hold that the IDEA's LRE requirement applies to ESY placements just as it does to school-year placements. Once Cornwall's Committee on Special Education determined that T.M. needed a twelve-month educational program, including an ESY placement, in order to prevent substantial regression, it was required to consider a continuum of alternative ESY placements and to offer T.M. the least restrictive placement from that continuum appropriate for his needs. The district court therefore erred in determining that Cornwall met its obligations under the IDEA by offering T.M. only an ESY placement in a self-contained special education classroom.

We further hold that the district court erred by ordering Cornwall to pay the full cost of obtaining T.M.'s pendency services through private providers even though Cornwall had offered to provide the same services itself at a lower cost. Although Cornwall was wrong to deny T.M. pendency services in the first place, it nevertheless is not required to pay for T.M. to remain with the same pendency services providers throughout this entire litigation.

We therefore vacate the district court's judgment and remand for further proceedings.

BACKGROUND

A. Legal Framework

The IDEA requires states receiving federal special education funding to provide disabled children with a FAPE. M.W. ex rel. S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 135 (2d Cir.2013); R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 174–75 (2d Cir.2012). “To ensure that qualifying children receive a FAPE, a school district must create an individualized education program (‘IEP’) for each such child.” R.E., 694 F.3d at 175;see also20 U.S.C. § 1414(d). That IEP must be developed in accordance with the procedures laid out in the IDEA, and must be “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The state must also ensure that “[t]o the maximum extent appropriate, children with disabilities ... are educated with children who are not disabled.” 20 U.S.C. § 1412(a)(5)(A). In other words, the state must seek to educate each child with a disability in his or her LRE. See M.W., 725 F.3d at 143.

Some children with disabilities need educational services not only during the regular school year, but over the summer as well. An IEP may therefore provide for a full twelve-month educational program that includes regular school-year services as well as ESY services over the summer. The IDEA's implementing regulations require school districts to “ensure that extended school year services are available as necessary to provide FAPE.” 34 C.F.R. § 300.106(a)(1). In New York, disabled students “shall be considered for 12–month special services and/or programs” if “because of their disabilities, [they] exhibit the need for a 12–month special service and/or program ... in order to prevent substantial regression.” N.Y. Comp.Codes R. & Regs. tit. 8, § 200.6(k)(1)(v).

New York parents who believe that a school district has failed to provide their child a FAPE in his or her LRE may present a due process complaint notice and request an impartial hearing before an impartial hearing officer (“IHO”). 20 U.S.C. § 1415(b)(6), (b)(7)(A), (f); N.Y. Educ. Law § 4404(1). Any party aggrieved by the IHO's decision may then appeal to the state educational agency for an impartial review by a state review officer (“SRO”). 20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(2). Next, any party aggrieved by the SRO's decision may file a civil action in federal district court to obtain further review. 20 U.S.C. § 1415(i)(2)(A). The district court receives the records of the state administrative proceedings and hears additional evidence if requested. Id. § 1415(i)(2)(C)(i)-(ii). “[B]asing its decision on the preponderance of the evidence,” the district court “shall grant such relief as [it] determines is appropriate.” Id. § 1415(i)(2)(C)(iii).

Concerned parents are not required to leave their child in the public school system while this process is pending. Instead, parents who think that the state has failed to offer their child a FAPE in the appropriate LRE may pay for private services, including private schooling, and then seek reimbursement from the school district. M.W., 725 F.3d at 135;M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 246 (2d Cir.2012); see also Sch. Comm. of the Town of Burlington v. Dep't of Educ., 471 U.S. 359, 369–71, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). According to the three-part Burlington/ Carter test, the parents will be entitled to reimbursement if (1) the school district's proposed placement violated the IDEA, (2) the parents' alternative private placement was appropriate, and (3) equitable considerations favor reimbursement. M.W., 725 F.3d at 135;see Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15–16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993).

Finally, the IDEA's pendency provision entitles a disabled child to “remain in [his] then-current educational placement” while the administrative and judicial proceedings described above are pending. 20 U.S.C. § 1415(j). That provision seeks to maintain the educational status quo while the parties' dispute is being resolved. See Mackey ex rel. Thomas M. v. Bd. of Educ., 386 F.3d 158, 160–61 (2d Cir.2004). It therefore “require[s] that a school district continue to finance an educational placement made by the agency and consented to by the parent before the parent requested a due process hearing.” Id. at 163 (quoting Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir.1982)).

B. Factual Background

T.M. was born in July 2004. He has been diagnosed with autism, a developmental disorder whose symptoms include difficulty with social interaction, difficulty with communication, and repetitive behavior. See Autism Spectrum Disorders (ASDs), CDC, http:// www. cdc. gov/ ncbddd/ autism/ hcpdsm. html (last visited Nov. 1, 2013); see also Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 51 (5th ed.2013) (adopting the broader term “autism spectrum disorder”). T.M.'s autism makes him occasionally show “interfering behaviors,” such as playing with his fingers, rolling his socks, twitching his legs, twirling his hair, and talking or singing inappropriately.

At the age of three years old, T.M. was classified as a preschool child with a disability. He attended three different private preschool programs, including the Butterhill Day School (“Butterhill”). In all three preschool programs, T.M. was educated in “mainstream” general education classrooms with non-disabled students. T.M. also received additional preschool special education services, which the school district furnished through private providers.

T.M. turned five years old in July 2009, making him eligible to begin attending public school in 2009–2010. SeeN.Y. Educ. Law § 3202(1). In May 2009, Cornwall's Committee on Special Education (“CSE”) determined that T.M. needed a twelve-month educational program, including ESY services, in order to prevent substantial regression in his development. SeeN.Y. Comp.Codes R. & Regs. tit. 8, § 200.6(k)(1)(v). The CSE therefore produced an IEP outlining the educational services Cornwall would provide for T.M. over the summer of 2009. Under that May 2009 IEP, which T.M.'s parents accepted, T.M. received 25 hours per week of one-on-one (“1:1”) instruction from a special education itinerant teacher (“SEIT”); two 45–minute sessions per week of 1:1 occupational therapy; two 45–minute sessions per week of 1:1 physical therapy; three 30–minute sessions per week of 1:1 speech and language therapy; and three hours per month of parent counseling and training.¹

In August 2009, Cornwall's CSE met again to develop an IEP for T.M.'s 2009–2010 academic year (fr...