Important Decision: Least Restrictive Environment Applies to Extended Year Services

The Second Circuit decided an important case this spring regarding whether the “Least Restrictive Environment” standard extends to Extended School Year Services (ESY).” In T.M. v. Cornwall Central School District, the district’s Committee on Special Education (CSE) provided T.M., a five year-old student with autism, with a twelve-month instructional program. During the academic year, the CSE recommended that T.M. be placed in a mainstream kindergarten classroom, with non-disabled students and with additional supports and special education services. During the summer months, however, Cornwall recommended a 12:1:1 classroom setting that was open only to students with disabilities because the school district does not operate a mainstream summer program. T.M.’s parents sued, alleging that Cornwall failed to provide T.M. with an instructional program in the least restrictive environment during the extended school year.  The Second Circuit agreed and held that “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.” As with school-year placements, school districts must consider a continuum of alternative ESY settings and offer the student the least restrictive placement from that continuum, appropriate for his unique needs.  Cornwall’s failure to consider a continuum of ESY placements that would meet T.M.’s needs, either in the school district or at another private or public agency, amounted to a denial of a FAPE. The court pointed out, however, that a school district that does not already provide a mainstream program during the summer will not be required to create one “from scratch” just for one student.

The Second Circuit then addressed whether Cornwall should reimburse T.M’s parents for the full cost of the private services T.M.’s parents obtained during pendency.  The court held that the parents were not entitled to full reimbursement even though the district initially refused to provide services. Since Cornwall later conceded pendency and offered to provide T.M. the same type of services through the district – which the parents rejected – the parents should be entitled to reimbursement only up to the amount Cornwall would have spent on its providers.  The court held that the IDEA does not entitle a student with a disability to continue receiving services from the exact same service providers while litigation is pending.  It only entitles the child to receive “the general type of educational program.”