12-4301 (L)
T.M. v. Cornwall Central School District
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2013
(Argued: October 22, 2013 Decided: April 2, 2014)
Docket Nos. 12‐4301 (Lead) & 12‐4484 (XAP)
_______________
T.M., by A.M. and R.M., his parents,
Plaintiff–Appellant–Cross‐Appellee,
—v.—
CORNWALL CENTRAL SCHOOL DISTRICT,
Defendant–Appellee–Cross‐Appellant.*
_______________
Before :
KATZMANN, Chief Judge, KEARSE and WESLEY, Circuit Judges.
_______________
*
The Clerk of the Court is respectfully directed to amend the official caption to
conform with that above.
1
Appeal from a September 26, 2012 decision and resulting judgment of the
United States District Court for the Southern District of New York (Briccetti, J.)
granting summary judgment for defendant Cornwall Central School District
(“Cornwall”). Cross‐appeal from the district court’s August 7, 2012 decision
granting the motion by plaintiff T.M., through his parents, for a preliminary
injunction, and its October 9, 2012 decision denying defendant’s motion to
amend that decision. We hold that the least restrictive environment (“LRE”)
requirement of the Individuals with Disabilities Education Act, 20 U.S.C.
§ 1412(a)(5)(A), applies to extended school year (“ESY”) placements as it does to
regular school‐year placements. We therefore conclude that the district court
erred in determining that Cornwall met the LRE requirement when it offered
T.M. only an ESY placement in a self‐contained special education class. We also
hold that the district court erred by requiring Cornwall to reimburse T.M.’s
parents for the entire cost of the pendency services they obtained for T.M. from
private providers after Cornwall offered to provide equivalent services directly.
Accordingly, the district court’s judgment is VACATED and the case is
REMANDED for further proceedings.
2
_______________
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.
_______________
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
1
The IDEA was subsequently reauthorized and amended by the Individuals
with Disabilities Education Improvement Act of 2004 (“IDEIA”), Pub. L. No. 108–446,
118 Stat. 2647.
3
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. See 20 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
4
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 also 20 U.S.C. § 1414(d). That IEP must be
5
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 (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).
6
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
7
U.S. 359, 369–71 (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 (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
8
Spectrum Disorders (ASDs), CDC, http://www.cdc.gov/ncbddd/autism /hcp‐
dsm.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. See N.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. See N.Y. Comp. Codes R. &
9
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 (from September 2009 through June 2010). The CSE
recommended that T.M. be placed in a mainstream kindergarten classroom with
additional supports, including a 1:1 teaching assistant to support T.M. in the
classroom and one hour per day of additional instruction at home. The CSE also
recommended that T.M. should receive a variety of special education services
similar to those recommended in the May 2009 IEP.
T.M.’s parents objected to the CSE’s August 2009 IEP. They asserted that
T.M. would need a 1:1 special education teacher (rather than a teaching assistant)
1
These were the same special education services that T.M. had received from
September 2008 through June 2009, in his last year of preschool.
10
to support him in the classroom, and would also need two to three hours per day
of instruction at home. T.M.’s parents therefore requested an impartial hearing.
See 20 U.S.C. § 1415(f); N.Y. Educ. Law § 4404(1). They subsequently enrolled
T.M. in Butterhill’s developmental kindergarten program for the 2009–2010
academic year, which was a mainstream classroom designed to transition
normally developing children into a full kindergarten program. They also
arranged at their own expense to continue the same special education services,
with the same providers, that T.M. had received under the May 2009 IEP.
In October 2009, Cornwall and T.M. reached a stipulation of settlement
resolving T.M.’s request for an impartial hearing. Under that stipulation of
settlement, T.M.’s parents agreed to pay the cost of T.M.’s 2009–2010 tuition at
Butterhill, while Cornwall agreed to pay for the additional special education
services described in the May 2009 IEP for the 2009–2010 academic year. The
stipulation of settlement also provided that it “d[id] not constitute an agreement .
. . under the pendency provision of the IDEIA for any continued payment,
placement, or program in a future year or evidence of support for the Parents’
requested program.” Joint Appendix (“J.A.”) 547.
11
Cornwall’s CSE met again on March 19 and April 16, 2010, to prepare a
new IEP for T.M.’s 2010–2011 year. At those meetings, the CSE heard from T.M.’s
service providers and reviewed reports from Cornwall staff who had observed
T.M. at Butterhill. However, the CSE did not conduct a separate functional
behavioral assessment (“FBA”) focused on T.M.’s interfering behaviors, nor did it
develop a specific behavioral intervention plan (“BIP”) to deal with those
behaviors.2
After its April 2010 meeting, the CSE proposed a new IEP for T.M.’s next
twelve‐month school year (from July 2010 through June 2011). The CSE again
determined that T.M. required a twelve‐month program, including ESY services,
in order to prevent substantial regression over the summer months. For T.M.’s
2
New York law defines an FBA as “the process of determining why the student
engages in behaviors that impede learning and how the student’s behavior relates to the
environment.” N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(r). An FBA:
shall include, but is not limited to, the identification of the problem
behavior, the definition of the behavior in concrete terms, the
identification of the contextual factors that contribute to the behavior
(including cognitive and affective factors) and the formulation of a
hypothesis regarding the general conditions under which a behavior
usually occurs and probable consequences that serve to maintain it.
Id.; see also id. § 200.22(a)(2) (describing the information on which an FBA must be
based). A BIP is “a plan that is based on the results of a [FBA] and, at a minimum,
includes a description of the problem behavior, global and specific hypotheses as to
why the problem behavior occurs and intervention strategies that include positive
behavioral supports and services to address the behavior.” Id. § 200.1(mmm).
12
ESY program in July and August 2010, the CSE considered two ESY placement
options. The first option, and the one Cornwall eventually recommended, was
Cornwall’s own summer special education program. That program operated on a
six‐week, half‐day schedule, offering three hours of instruction per day in a
12:1+1 classroom (that is, a classroom with twelve students, one teacher, and one
teaching assistant). As Cornwall’s summer special education program is open
only to students with disabilities, all of T.M.’s fellow students in that classroom
would have been disabled. The second option that the CSE considered was a full‐
day BOCES3 program, which T.M.’s parents rejected. Like Cornwall’s ESY
program, the BOCES program would have placed T.M. in a classroom with only
disabled students. Cornwall does not operate any mainstream summer program,
and did not offer to place T.M. in any public or private mainstream summer
program.
The April 2010 IEP also proposed that T.M. should continue to receive
additional special education services as part of his ESY program, including two
30‐minute sessions per week of 1:1 occupational therapy, two 30‐minute sessions
3
New York law authorizes the creation of boards of cooperative educational
services (“BOCES”), which operate to provide shared educational programs and
services across school districts. See N.Y. Educ. Law § 1950(1).
13
per week of 1:1 physical therapy, two 30‐minute sessions per week of 1:1 speech
and language therapy, and one 30‐minute session per week of 5:1 speech and
language therapy. The April 2010 IEP did not provide for a 1:1 teaching assistant
for T.M. or behavior consultant services, although those items were mentioned at
the CSE meeting. It also did not provide for any parent counseling and training
sessions over the summer.
For T.M.’s school‐year program, the April 2010 IEP would have placed
T.M. in Cornwall’s regular kindergarten classroom, with approximately 25
students, one teacher, and one teaching assistant. For his English and math
classes, however, T.M. would have been taught separately in a 12:1+1 special
education classroom for a total of 90 minutes each day. T.M. would have been
assigned an additional 1:1 teaching assistant to support him throughout the day.
He would also have received further special education services: two 45‐minute
sessions per week of 1:1 occupational therapy, two 30‐minute sessions per week
of physical therapy, three 30‐minute sessions per week of 1:1 speech and
language therapy, one 30‐minute session per week of 5:1 speech and language
therapy, two one‐hour sessions per week of behavior consultant services, and one
hour per month of parent counseling and training.
14
T.M.’s mother and his behavior consultant met with Cornwall officials on
June 10, 2010. At that meeting, Cornwall’s director of pupil personnel services
stated that the April 2010 IEP would be amended to include a 1:1 teaching
assistant and behavior consultant services as part of the proposed ESY program.
On June 16, 2010, T.M.’s parents informed Cornwall that they considered
the April 2010 IEP insufficient. They subsequently sent Cornwall a due process
complaint notice requesting an impartial hearing. See 20 U.S.C. § 1415(b)(6),
(b)(7)(A), (f); N.Y. Educ. Law § 4404(1). That complaint notice also invoked T.M.’s
rights under the IDEA’s pendency provision, asserting that Cornwall was
required to provide T.M. with the special education services listed in the May
2009 IEP (as T.M.’s then‐current educational placement) until the impartial
hearing and any subsequent proceedings were completed. See 20 U.S.C. § 1415(j).
Having rejected Cornwall’s proposed ESY program, T.M.’s parents enrolled him
in Butterhill’s half‐day mainstream summer program for six weeks in July and
August 2010.
Cornwall responded by informing T.M.’s parents that, in its opinion, the
April 2010 IEP was procedurally and substantively appropriate. It also contended
15
that under the October 2009 stipulation of settlement, T.M. was not entitled to
have Cornwall provide any pendency services.
The parties met for a resolution session on July 30, 2010, but were unable to
reach agreement. On August 20, 2010, Cornwall scheduled another CSE meeting
to make changes to T.M.’s IEP. The CSE then issued a revised IEP that altered the
proposed academic‐year program in several ways; for instance, the new IEP
added an additional 30‐minute session per week of 1:1 speech and language
therapy, lengthened the weekly 30‐minute session of 5:1 speech and language
therapy to a full hour, and provided more support for T.M.’s educational staff.
However, T.M.’s parents found that the August 2010 IEP was still insufficient.
They sent Cornwall an amended due process complaint notice rejecting it and
again requesting an impartial hearing. They then enrolled T.M. in Butterhill’s
regular mainstream kindergarten program for the 2010–2011 academic year, and
paid out of pocket for his Butterhill tuition and for additional special education
services. Those special education services were similar to the services described
in the May 2009 IEP, but went somewhat further; for instance, they included 35
hours of 1:1 SEIT services per week, rather than only 25 hours.
16
B. Proceedings Before the IHO
Because the parties had failed to resolve their differences, a state IHO held
an administrative hearing on eight nonconsecutive days between September 13,
2010 and January 31, 2011. On February 2, 2011, the IHO issued a decision
finding that T.M. was entitled to ongoing pendency services at the level
described in the May 2009 IEP. She therefore ordered Cornwall to reimburse
T.M.’s parents for such services on a twelve‐month basis from July 1, 2010
onwards.4
On May 16, 2011, the IHO issued a second decision finding that Cornwall
had failed to offer T.M. a FAPE in his LRE for the 2010–2011 year. She
determined that the ESY placement Cornwall offered T.M. for the summer
months was overly restrictive because it placed him in a special education
classroom rather than a general education classroom. While the IHO
acknowledged Cornwall’s argument that it did not operate any mainstream
summer program, she held that “the absence of an appropriate in‐district setting
4
The May 2009 IEP provided for three hours per month of parent counseling and
training. Although the IHO’s order determined that T.M. was entitled to the services
described in his May 2009 IEP as pendency services, it ordered Cornwall to pay for only
one hour per month of parent counseling and training. We assume, as the parties
apparently did, that this discrepancy is merely a scrivener’s error in the IHO’s order.
17
does not negate a student’s right to be educated in the LRE.” J.A. 1070. She also
noted the absence of any 1:1 teaching assistant or behavior consultant in the ESY
program described in the April 2010 IEP.
Next, the IHO determined that the school‐year program Cornwall had
proposed was also insufficient. She found that given T.M.’s interfering behaviors,
Cornwall was required to perform an FBA and develop a BIP when preparing
T.M.’s IEP. She also found that the 25‐student general education kindergarten
class that Cornwall offered was too large for T.M., and that the special education
English and math classes were overly restrictive. Moreover, she determined that
the proposed daily schedule did not provide sufficient continuity for T.M., and
did not include enough behavior consultant support.
Applying the Burlington/Carter test, the IHO found that T.M.’s parents
were entitled to reimbursement for T.M.’s tuition for the twelve‐month 2010–2011
year, because the alternative placement T.M.’s parents had developed was
appropriate and equitable factors supported reimbursement. The IHO therefore
directed Cornwall to pay for T.M.’s Butterhill tuition from July 2010 through June
2011, and for the additional special education services that T.M.’s parents had
obtained for that year.
18
C. Subsequent Developments
In accordance with the IHO’s decision on pendency services, Cornwall
reimbursed T.M.’s parents for the amount that they spent during the 2010–2011
year on special education services within the scope of the May 2009 IEP.
However, Cornwall appealed the IHO’s pendency decision to the extent that it
required Cornwall to continue paying for T.M. to obtain pendency services from
his private providers, rather than allowing Cornwall to provide T.M.’s pendency
services directly. Cornwall also appealed the IHO’s determination that it had
failed to offer T.M. a FAPE in his LRE, and that T.M.’s private alternative
placement was appropriate. In accordance with the statutory scheme described
above, Cornwall sought review of those decisions by an SRO.
Meanwhile, T.M.’s parents sent Cornwall a letter stating that they intended
to keep T.M. at Butterhill for the next twelve‐month year, from July 2011 through
June 2012, and intended to continue obtaining special education services
(including T.M.’s pendency services) from the same private providers. They
asserted that Cornwall had again failed to offer T.M. a FAPE for the 2011–2012
year, and that Cornwall was therefore responsible for funding T.M.’s Butterhill
tuition and all of his special education services (including his pendency services)
19
for that year as well. Cornwall acknowledged this letter, and confirmed that
T.M.’s parents were rejecting the IEP it had offered for T.M.’s 2011–2012 summer
program. On the pendency issue, Cornwall stated that instead of paying private
providers for T.M.’s pendency services, it would provide T.M.’s pendency
services directly for the 2011–2012 year. Specifically, it offered to provide the
following pendency services:
(a) 25 hours per week of 1:1 SEIT services, at Butterhill and in the
home, to be provided by [Cornwall] special education teacher Julie
Hahn, (b) three thirty minute sessions per week of 1:1 speech and
language therapy, to be provided by [Cornwall] speech therapist,
Lori Neilson, (c) two forty‐five minute sessions per week of 1:1
occupational therapy, to be provided by [Cornwall] occupational
therapist Patricia Deery, (d) two forty‐five minute sessions per week
of 1:1 physical therapy, provided by [Cornwall] physical therapist
Sheila Reed, and (e) one hour per month of parent training and
counseling in each of speech and language, occupational therapy,
and physical therapy.
J.A. 1243–44. These are the same services that were described in the May 2009
IEP, and the same services that the IHO determined Cornwall was required to
provide as T.M.’s pendency services. The only difference is that Cornwall was
offering to provide those services through its own staff rather than through the
private providers T.M. had previously used.
20
T.M.’s parents rejected Cornwall’s offer to provide T.M.’s pendency
services directly. Because Cornwall had initially refused to provide T.M.’s
pendency services itself, they asserted, it was “estopped to insist on now
substituting new personnel.” J.A. 1246. They maintained that Cornwall was
obligated to pay for T.M. to obtain pendency services from his current private
providers.
D. Proceedings before the SRO
The SRO issued her decision regarding Cornwall’s appeal on August 22,
2011. First, the SRO found that the IHO had correctly granted T.M. the pendency
services to which he was entitled for the 2010–2011 year. However, the SRO
ordered Cornwall to reimburse T.M.’s parents only “for the costs of [T.M.’s]
pendency program . . . from the date of July 1, 2010 for the twelve‐month school
year.” J.A. 1178. T.M.’s parents and Cornwall both interpret that language to
mean that according to the SRO, Cornwall was not required to reimburse T.M.’s
parents for pendency services obtained from private providers after June 30,
2011.
Next, the SRO determined that Cornwall had properly offered T.M. a
FAPE in his LRE for the 2010–2011 year. The SRO found that Cornwall was not
21
required to offer T.M. an ESY program in a mainstream classroom, because
Cormwall “does not have an obligation to provide ESY services to nondisabled
students and did not have any summer programs for non‐disabled students in
which the student could be placed.” J.A. 1177. As for the April 2010 IEP’s failure
to include a teaching assistant or behavior consultant services in T.M.’s ESY
program, the SRO noted that Cornwall had assured T.M.’s mother in June 2010
that these services would in fact be provided, and that Cornwall’s director of
pupil services had testified that their omission from the IEP was a clerical error.
The SRO also found that the school‐year program Cornwall offered T.M.
was appropriate. She rejected the IHO’s determination that Cornwall was
required to conduct an FBA and develop a BIP, finding that the evaluations and
observations that Cornwall considered in developing the April 2010 and August
2010 IEPs provided sufficient information to determine T.M.’s educational needs.
She found that T.M.’s interfering behaviors “were not of such a frequency or
degree so as to impede his learning or that of others,” and “could adequately be
redressed by redirection and refocusing.” J.A. 1170. Moreover, the April 2010 IEP
included strategies for dealing with T.M.’s behaviors. The SRO concluded that as
Cornwall had thoroughly considered T.M.’s needs and developed appropriate
22
strategies to meet those needs, it did not deny him a FAPE education by omitting
an FBA and BIP.
The SRO also determined that the IHO erred in finding the proposed 25‐
student kindergarten class was too large for T.M. She observed that T.M. would
have been supported in the classroom by a 1:1 teaching assistant, and that the
kindergarten class functioned with a “small groups” structure that would reduce
the impact of the class size. The SRO further stated that the IEP included
sufficient support from a behavior consultant. Finally, the SRO found that the
proposed special education English and math classes were not overly restrictive,
because the hearing record showed that T.M. required specialized instruction in
these subjects.
Because the SRO determined that Cornwall had properly offered T.M. a
FAPE in his LRE, it denied his claim for tuition reimbursement without reaching
the other two parts of the Burlington/Carter test. That is, the SRO did not rule on
whether the alternative placement that T.M.’s parents developed was appropriate
or whether equitable considerations supported reimbursement.
23
E. Proceedings Before the District Court
On September 15, 2011, T.M.’s parents filed suit in the United States
District Court for the Southern District of New York to seek review of the SRO’s
decision. See 20 U.S.C. § 1415(i)(2)(A). On the pendency services issue, they
argued that the SRO erred by requiring Cornwall to pay for pendency services
from private providers for only the 2010–2011 year. They also challenged the
SRO’s determination that Cornwall offered T.M. an appropriate twelve‐month
educational program for 2010–2011, arguing that both the proposed ESY
placement and the proposed school‐year placement were inadequate. T.M.’s
parents moved for a preliminary injunction on the pendency issue and for
summary judgment on the merits; Cornwall cross‐moved for summary
judgment.
On August 7, 2012, the district court granted the motion for a preliminary
injunction, ruling that Cornwall was required to continue reimbursing T.M.’s
parents for pendency services that they obtained for T.M. from private
providers. It held that T.M.’s pendency rights entitled him not only to have the
services described in the May 2009 IEP, but also to have those services provided
by the private providers who assisted him during the 2010–2011 year. The district
24
court was of the view that the SRO had approved T.M.’s parents’ choice of
private providers, and so had incorporated those providers into T.M.’s pendency
entitlements. It also noted that Cornwall was offering to provide T.M.’s pendency
services only directly at Cornwall facilities, rather than offering to send Cornwall
staff to Butterhill to provide T.M.’s pendency services. It consequently rejected
what it perceived as an attempt to “unilaterally transfer T.M. from a private
school to a public school.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., No. 11‐
CV‐6459, 2012 WL 4069299, at *8 (S.D.N.Y. Aug. 7, 2012).
Cornwall filed a motion to amend the district court’s decision, which was
denied on October 9, 2012. In denying that motion, the district court recognized
that it had erred in determining that the SRO’s decision changed T.M.’s pendency
placement. It also recognized it had erred in believing Cornwall had offered to
provide T.M. pendency services only if he transferred to public school. The
district court nevertheless reaffirmed its prior order, holding that “when, as here,
a school district flatly refuses to recognize a student’s pendency rights, the school
district must reimburse the parents for the costs of the pendency services
privately secured by the parents until the underlying dispute is resolved.” J.A.
1396 (quoting J.A. 1389–91).
25
Meanwhile, on September 26, 2012, the district court entered a decision
granting summary judgment for Cornwall. Like the SRO, the district court found
that Cornwall had properly offered T.M. a FAPE in his LRE for the entire
2010–2011 year. As to the ESY program that Cornwall offered T.M. for the
summer of 2010, the district court found that it did not violate the IDEA’s LRE
requirement. Although it recognized that Cornwall offered to place T.M. only in
a special education summer program, not a mainstream program, it found that
T.M.’s parents had “not shown that a less‐restrictive placement option was
available to TM but not offered.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 900
F. Supp. 2d 344, 353 (S.D.N.Y. 2012). It therefore concluded that Cornwall had
appropriately offered T.M. a summer placement in his LRE.
The district court next affirmed the SRO’s determination that Cornwall was
not required to conduct an FBA or develop a BIP as part of T.M.’s IEP because
T.M.’s interfering behaviors did not impede learning, and because the April 2010
and August 2010 IEPs adequately addressed those behaviors. The district court
also affirmed the SRO’s determination that Cornwall offered T.M. an appropriate
placement for the 2010–2011 year. T.M.’s parents raised only one challenge to that
determination in their brief to the district court, arguing that the 25‐student
26
kindergarten class was too large; the district court rejected that argument,
deferring to the SRO’s evaluation of the evidence in the record.
Having found that Cornwall offered T.M. a FAPE in his LRE for 2010‐2011,
the district court granted summary judgment for Cornwall without addressing
the appropriateness of T.M.’s private alternative placement or any equitable
considerations regarding reimbursement.
T.M.’s parents appealed from the district court’s decision awarding
Cornwall summary judgment, and Cornwall cross‐appealed from the district
court’s decisions on the pendency issue. We have jurisdiction under 28 U.S.C.
§ 1291.5
DISCUSSION
A. The Appeal
On appeal, T.M.’s parents argue that the district court erred in granting
summary judgment to Cornwall after determining that the April 2010 and
August 2010 IEPs met the requirements of the IDEA.
5
No separate final judgment appears on the district court docket. We
nevertheless retain jurisdiction over this appeal, since the district court’s orders
disposed of all the claims in the case. See Bouboulis v. Transport Workers Union of Am., 442
F.3d 55, 60 (2d Cir. 2006) (“The failure of the Clerk to enter a separate judgment does
not require this Court to dismiss the appeal.”).
27
1. Legal Standard
“We review de novo the district court’s grant of summary judgment in an
IDEA case.” A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009). In the
context presented here, summary judgment is simply a “pragmatic procedural
mechanism for reviewing administrative decisions.” M.W. ex rel. S.W. v. N.Y.C.
Dep’t of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (quoting T.P. ex rel. S.P. v.
Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam)). In
reviewing those administrative decisions, we bear in mind that “[t]he
responsibility for determining whether a challenged IEP will provide a child with
an appropriate public education rests in the first instance with administrative
hearing and review officers.” Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119,
129 (2d Cir. 1998); see also M.W., 725 F.3d at 138. We therefore afford a significant
degree of deference to the state educational agency, particularly where the
agency’s decisions are well‐reasoned and supported by the record. M.H. v. N.Y.C.
Dep’t of Educ., 685 F.3d 217, 241 (2d Cir. 2012); P. ex rel. Mr. and Mrs. P. v.
Newington Bd. of Educ., 546 F.3d 111, 118 (2d Cir. 2008). Where the decisions of the
IHO and the SRO disagree, we defer to the decision of the SRO as the final state
28
administrative determination, though we may also consider the IHO’s analysis if
we find the SRO’s decision unpersuasive. M.H., 685 F.3d at 246.
To decide whether an IEP complies with the IDEA, we follow a two‐part
test. See Bd. of Educ. v. Rowley, 458 U.S. 176, 206–07 (1982). The first part examines
the procedural adequacy of the IEP, asking “whether the state has complied with
the procedures set forth in the IDEA.” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167,
190 (2d Cir. 2012) (quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d
Cir. 2005)). Procedural violations will entitle parents to reimbursement only if
they “impeded the child’s right to a [FAPE],” “significantly impeded the parents’
opportunity to participate in the decisionmaking process regarding the provision
of a [FAPE] to the parents’ child,” or “caused a deprivation of educational
benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii); see also R.E., 694 F.3d at 190. The second
part of the test examines the substantive adequacy of the IEP by asking whether it
was “reasonably calculated to enable the child to receive educational benefits.”
Rowley, 458 U.S. at 207; see also R.E., 694 F.3d at 190. In determining the
substantive adequacy of the IEP, we must also consider whether the state
complied with the IDEA’s LRE requirement by educating the child, to the
maximum extent appropriate, with children who are not disabled. See 20 U.S.C.
29
§ 1412(a)(5)(A); M.W., 725 F.3d at 143–46. “Substantive inadequacy automatically
entitles the parents to reimbursement,” as long as the parents’ alternative
placement was appropriate and equitable considerations favor reimbursement.
M.W., 725 F.3d at 143 (quoting R.E., 694 F.3d at 190); see also Florence Cnty. Sch.
Dist. Four v. Carter, 510 U.S. 7, 15–16 (1993); Sch. Comm. of the Town of Burlington v.
Dep’t of Educ., 471 U.S. 359, 369–71 (1985).
We normally address the two parts of this test in the order given above.
See, e.g., M.W., 725 F.3d at 139–47. In this case, however, the parents’ primary
argument on appeal is substantive. We therefore consider their arguments for
substantive inadequacy first before turning to the asserted procedural violations.
2. Substantive Violations
On appeal, T.M.’s parents primarily argue that the April 2010 IEP violated
the substantive requirements of the IDEA because Cornwall did not offer T.M. an
ESY placement in his LRE. They also briefly mention several other possible
substantive flaws in the April 2010 and August 2010 IEPs, which we address for
completeness.
30
a. LRE
The IDEA’s LRE requirement is laid out in 20 U.S.C. § 1412(a)(5)(A), titled
“Least restrictive environment.” Under that provision, a state receiving federal
special education funding must ensure that:
To the maximum extent appropriate, children with disabilities,
including children in public or private institutions or other care
facilities, are educated with children who are not disabled, and
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 a child is such that
education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A). This requirement “expresses a strong preference for
children with disabilities to be educated, to the maximum extent appropriate,
together with their non‐disabled peers.” Walczak, 142 F.3d at 122 (internal
quotation marks omitted). In enacting this provision, Congress sought to protect
disabled children from being inappropriately segregated in special classrooms.
M.W., 725 F.3d at 145; see Burlington, 471 U.S. at 373 (“Congress was concerned
about the apparently widespread practice of relegating handicapped children to
private institutions or warehousing them in special classes.”). The implementing
regulations require school districts to ensure that a “continuum of alternative
placements is available to meet the needs of children with disabilities,” including
31
“instruction in regular classes, special classes, special schools, home instruction,
and instruction in hospitals and institutions.” 34 C.F.R. § 300.115(a), (b)(1); see
also H.R. Rep. No. 108‐779, at 186 (2004) (Conf. Rep.) (noting this requirement).
After considering an appropriate continuum of alternative placements, the school
district must place each disabled child in the least restrictive educational
environment that is consonant with his or her needs.
Because every child is unique, “determining whether a student has been
placed in the ‘least restrictive environment’ requires a flexible, fact‐specific
analysis.” Newington, 546 F.3d at 113. We ask “first, ‘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.’” Id. at 120 (quoting
Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989)). Factors
relevant to the first question include:
(1) whether the school district has made reasonable efforts to
accommodate the child in a regular classroom; (2) the educational
benefits available to the child in a regular class, with appropriate
supplementary aids and services, as compared to the benefits
provided in a special education class; and (3) the possible negative
side effects of the inclusion of the child on the education of other
students.
M.W., 725 F.3d at 144 (quoting Newington, 546 F.3d at 120).
32
We have emphasized that the LRE requirement is not absolute. It does not
require a school district to place a student in the single least restrictive
environment in which he is capable of any satisfactory learning. M.W., 725 F.3d at
145. Although the IDEA strongly prefers placing children in their least restrictive
environment, “the presumption in favor of mainstreaming must be weighed
against the importance of providing an appropriate education to handicapped
students.” Newington, 546 F.3d at 119 (quoting Briggs v. Bd. of Educ., 882 F.3d 688,
692 (2d Cir. 1989)). The school must aim to minimize the restrictiveness of the
student’s environment while also considering the educational benefits available
in that environment, “seek[ing] an optimal result across the two requirements.”
M.W., 725 F.3d at 145.
While these two requirements are often in tension, they do not conflict in
T.M.’s case. Applying the first prong of the Newington test, it is undisputed that
T.M. was able to achieve a satisfactory education in a regular classroom. T.M. had
already attended a full academic year of developmental kindergarten in
2009–2010 at Butterhill in a mainstream classroom. Moreover, Cornwall’s April
2010 and August 2010 IEPs both recommended that T.M. should primarily be
educated in a mainstream kindergarten classroom for the 2010–2011 academic
year. Finally, T.M. did in fact attend a mainstream summer program at Butterhill
33
in the summer of 2010, and apparently showed satisfactory progress. The record
thus clearly demonstrates that T.M. could succeed in a normal classroom
environment with the use of supplementary aids and services. In addition,
nothing in the record indicates that T.M. would obtain greater educational
benefits from a more restrictive setting. We can therefore conclude from the first
prong of the Newington test that a mainstream classroom was the least restrictive
placement that was appropriate for T.M.’s educational needs.
It is equally clear that Cornwall did not offer T.M. an ESY placement in a
mainstream classroom for the summer of 2010. Instead, both of the ESY
placements that Cornwall offered—namely, Cornwall’s own half‐day special
education program and the BOCES full‐day special education program—were
self‐contained special education classrooms with no nondisabled students.
According to our usual analysis, then, the April 2010 IEP violated the LRE
requirement because it placed T.M. in a more restrictive educational setting for
his ESY program than his disability required.
Cornwall argues, however, that the LRE requirement does not apply to the
ESY component of a twelve‐month educational program in the same way that it
applies to the school‐year component. Instead, Cornwall takes the position that
the LRE requirement applies to an ESY placement only if the school district has a
34
less restrictive ESY placement available, but then excludes the disabled student
from that less restrictive placement. On that view, because Cornwall did not
already have a mainstream ESY program, it was not required to offer T.M. any
mainstream ESY placement.
We reject Cornwall’s contention that the LRE requirement should apply
differently to the ESY component of a twelve‐month educational program than it
does to the school‐year component. If 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. See 34 C.F.R. § 300.106(a)(1)
(requiring school districts to ensure ESY services “are available as necessary to
provide FAPE”); N.Y. Comp. Codes R. & Regs. tit. 8, § 200.6(k)(1) (describing
eligibility for “12‐month special services and/or programs”). We apply the same
LRE requirement to the entire proposed educational program, examining
whether any part of that program is more restrictive than necessary.
We therefore also reject Cornwall’s contention that the LRE requirement is
necessarily limited, in the ESY context, by what programs the school district
already offers. 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
35
available. See Walczak, 142 F.3d at 122 (“[S]pecial education and related services
must be provided in the least restrictive setting consistent with a child’s needs.”).
In order to comply with the LRE requirement, for the ESY component of a
twelve‐month educational program as for the school‐year component, a school
district must consider an appropriate continuum of alternative placements, and
then must offer the student the least restrictive placement from that continuum
that is appropriate for the student’s disabilities.
This interpretation of the LRE requirement flows directly from the text of
the statute. The statutory provision imposes a broad duty on each state to 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). It does
not permit a school district to escape that broad duty in the ESY context just by
choosing to offer only restrictive ESY environments. Moreover, the second half of
the LRE provision makes it clear that the statute’s focus is on the child’s abilities,
not the school district’s existing programs. That second half 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.” Id. (emphasis added); see also 34 C.F.R.
36
§ 300.114(a)(2)(ii); H.R. Rep. No. 108‐779, at 186 (2004) (Conf. Rep.). In other
words, a disabled child should not be forced into a special classroom if he or she
can be appropriately educated in a mainstream classroom. 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.
Cornwall focuses on the phrase “other removal of children with disabilities
from the regular educational environment,” 20 U.S.C. § 1412(a)(5)(A), contending
this phrase presumes the existence of a regular educational environment from
which the child is being removed. It therefore argues that the LRE requirement
applies only where the state already operates a mainstream classroom in which
the student could be placed. On that view, the LRE requirement does not apply
to T.M.’s ESY placement, because Cornwall does not operate any mainstream
ESY program.
We are not persuaded by Cornwall’s reading of the statutory language. By
its plain terms, the statute prohibits all “special classes, separate schooling, or
other removal of children with disabilities from the regular educational
environment,” unless the nature or severity of the child’s disability requires one
of these restrictive placements. 20 U.S.C. § 1412(a)(5)(A) (emphasis added). The
37
use of the disjunctive “or” shows that Congress intended to reach each of the
three listed items individually. See Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)
(“Canons of construction ordinarily suggest that terms connected by a disjunctive
be given separate meanings, unless the context dictates otherwise; here, it does
not.”); see also Barscz v. Director, 486 F.3d 744, 750 (2d Cir. 2007) (noting that
phrases listed in the disjunctive “should be treated independently”). Here, it is
undisputed that the ESY placement Cornwall offered T.M. was a “special class”;
as described above, it was a special education program open only to students
with disabilities. The plain statutory language of the LRE requirement prohibits
placing a disabled child in such a “special class” unless that placement is
appropriate because of the nature and severity of the child’s disability. It is not
limited to cases where the school already operates a mainstream educational
environment.
In context, the phrase “other removal . . . from the regular educational
environment” is simply a catchall. It gathers in all the other educational
environments, beyond “special classes” and “separate schooling,” that are more
restrictive than “education in regular classes with the use of supplementary aids
and services.” 20 U.S.C. § 1412(a)(5)(A). It does not implicitly limit the LRE
requirement to cases where the school district already provides a mainstream
38
classroom environment. After all, if Congress had really meant to limit the LRE
requirement as Cornwall suggests, it would surely have said so directly rather
than relying on an ambiguous implication from the word “removal.” Cf. Conn.
Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[C]ourts must presume that
[Congress] says in a statute what it means and means in a statute what it says
there.”).
Moreover, Cornwall’s interpretation would produce some results
inconsistent with the statutory scheme. If the LRE requirement does not apply
unless the school district operates a “regular educational environment” from
which the student is “remov[ed],” then a school district that offers only a range of
restrictive ESY programs (say, a special education day school and a special
education program at a residential institution) could place all of its disabled
children in its most restrictive summer program without the LRE requirement
interfering. That result would contradict both the clear intent of the IDEA and
also our caselaw. See Walczak, 142 F.3d at 132 (“‘[E]ven in cases in which
mainstreaming is not a feasible alternative,’ the statutory preference for a least
restrictive placement applies.” (quoting Sherri A.D. v. Kirby, 975 F.2d 193, 206 (5th
Cir. 1992))).
39
For another example, imagine a school district that operates only a
mainstream ESY program and a highly restrictive residential ESY program.
Under Cornwall’s interpretation, the LRE requirement would apparently permit
that school district to assign any student too disabled for a mainstream classroom
to the residential institution, since the residential institution would be the least
restrictive public setting available. That scenario, of course, is precisely what the
IDEA was intended to prevent. See Burlington, 471 U.S. at 373 (noting that in
enacting the IDEA’s predecessor, “Congress was concerned about the apparently
widespread practice of relegating handicapped children to private institutions or
warehousing them in special classes”).
We therefore conclude the IDEA’s LRE requirement is not strictly limited
by the range of ESY programs that the school district chooses to offer. Instead, the
LRE requirement applies in the same way to ESY placements as it does to school‐
year placements. To meet that requirement, a school district first must consider
an appropriate continuum of alternative placements; it then must offer the
disabled student the least restrictive placement from that continuum that is
appropriate for his or her needs.
The obligation to offer a continuum of appropriate placements is in fact
spelled out explicitly in the federal regulations that implement the IDEA. Under
40
34 C.F.R. § 300.115(a), each 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)(1); see Bd. of Educ. v.
Ill. State Bd. of Educ., 41 F.3d 1162, 1168 (7th Cir. 1994) (“In implementing the LRE
mandate, each school district must maintain a continuum of program options
which range from regular classrooms with supplementary aids to separate
schools and residential facilities.”).6 A school district therefore cannot avoid the
LRE requirement just by deciding not to operate certain types of educational
environments; instead, it must provide a continuum of alternative placements
that meet the needs of the disabled children that it serves.
6
The legislative history confirms that Congress was fully aware of these
regulations when it reauthorized and amended the IDEA in 2004. As the IDEIA
conference committee report specifically noted: “The law requires that each public
agency shall ensure that a continuum of alternative placements (instruction in regular
classes, special classes, special schools, home instruction, and instruction in hospitals
and institutions) is available to meet the needs of children with disabilities for special
education and related services.” H.R. Rep. No. 108‐779, at 186 (2004) (Conf. Rep.) The
House and Senate committees considering the IDEA Amendments of 1997 also
indicated their approval of this “longstanding policy.” H.R. Rep. No. 105‐95, at 91
(1997); S. Rep. No. 105‐17, at 11 (1997).
41
Of course, a school district need not itself operate all of the different
educational programs on this continuum of alternative placements. The
continuum may instead include free public placements at educational programs
operated by other entities, including other public agencies or private schools. See
34 C.F.R. § 300.552 note (1998) (describing alternative methods of meeting the
LRE requirement in the preschool context for school districts that do not operate
programs for nondisabled preschool children)7; S. Rep. No. 94‐168, at 22 (1975)
(“[T]he Committee . . . does not intend that State and local educational agencies
must be the sole providers of [educational] services. Particularly with respect to
preschool services, while the local educational agencies are responsible under the
Act for making available educational services to handicapped children, . . . public
and private non‐profit agencies currently providing preschool services should be
utilized to meet the full services mandate.”). We therefore agree with both parties
that the IDEA does not require a school district to create a new mainstream
summer program from scratch just to serve the needs of one disabled child. See
T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 579 (3d Cir. 2000) (“[A] district
7
This regulation now appears, as amended, at 34 C.F.R. § 300.116. The
explanatory note cited here was removed in 1999 “in light of the general decision to
remove all notes from the[] final regulations.” Assistance to States for the Education of
Children with Disabilities and the Early Intervention Program for Infants and Toddlers
with Disabilities, 64 Fed. Reg. 12406, 12639 (Mar. 12, 1999).
42
that does not operate a regular preschool program is not required to initiate one
simply in order to create an LRE opportunity for a disabled child.”); Reusch v.
Fountain, 872 F. Supp. 1421, 1438 (D. Md. 1994) (noting that the IDEA does not
require school districts to “create artificial LRE settings during the summer
months”). Instead, the school district may choose to place the child in a private
mainstream summer program, or a mainstream summer program operated by
another public entity. Each school district thus has broad discretion over how it
structures its alternative ESY placements; it can choose to operate its own
educational ESY programs, or to offer the disabled children alternative
placements in outside programs. But if a school district simply refuses to
consider a sufficient continuum of possible ESY placements, and thereby denies a
child a FAPE in his or her LRE, then it may be liable for reimbursement if the
child’s parents find an appropriate alternative placement. See Carter, 510 U.S. at
15–16; Burlington, 471 U.S. at 369–71.
Cornwall responds that it had no way to offer T.M. a placement in a
mainstream ESY program operated by another entity, because (1) no public
mainstream ESY programs existed in the area and (2) New York law prohibited it
43
from offering T.M. a placement in a private mainstream ESY program.8 But even
assuming those facts are true, they do not change Cornwall’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). Because Cornwall failed to consider an
appropriate continuum of alternative ESY placements and place T.M. in his LRE
on that continuum, the ESY component of the April 2010 IEP was substantively
inadequate.
Three aspects of our analysis here bear special emphasis. First, we repeat
that the IDEA does not require public school districts to create any new ESY
programs that they do not currently operate. It is entirely up to each state and
each school district to decide how it will fulfill the IDEA’s LRE requirement.
Today as always, “public educational authorities who want to avoid reimbursing
parents for the private education of a disabled child can do one of two things:
give the child a free appropriate public education in a public setting, or place the
8
Cornwall argues that N.Y. Comp. Codes R. & Regs. tit. 8, § 200.7 limited its
ability to place T.M. in a private mainstream ESY program, by preventing the state
Commissioner of Education from approving certain private educational programs to
receive public special education funds. Even assuming arguendo that Cornwall has
correctly construed this regulation—a matter that we need not decide—this state
regulation does not relieve Cornwall of its obligation under the IDEA to consider a full
continuum of alternative placements for T.M.
44
child in an appropriate private setting of the State’s choice. This is IDEA’s
mandate, and school officials who conform to it need not worry about
reimbursement claims.” Carter, 510 U.S. at 15.
Second, we note that even if a school district fails to place a disabled
student in an ESY program in his LRE, the student still will not be entitled to
reimbursement unless he finds a private alternative ESY placement, proves that
alternative placement was appropriate, and proves that equitable considerations
favor reimbursement. See Carter, 510 U.S. at 15–16; Burlington, 471 U.S. at 369–71.
If no appropriate alternative ESY placements are available, the school district
need not fear reimbursement claims. Likewise, if practical issues make it
objectively impossible or impracticable to provide a disabled student an ESY
program in his LRE, the equitable calculus may weigh against reimbursement.
We therefore do not believe that school districts will face any substantial burden
from reimbursement claims for ESY programs—at least, no burden that Congress
did not foresee and intend when framing the IDEA.
Third and finally, we reiterate that a school district is not required to offer
every conceivable ESY environment that might be a particular student’s LRE.
Federal law requires only a “continuum of alternative placements,” including at
least “regular classes, special classes, special schools, home instruction, and
45
instruction in hospitals and institutions.” 34 C.F.R. § 300.115(a), (b)(1). A school
district that offers an appropriate continuum of ESY placements, and places a
student in his or her LRE within that continuum, will not be liable just because
another imaginable environment might be less restrictive for that student.
* * *
In this case, both the district court and the SRO erred as a matter of law in
determining that Cornwall was not required to offer T.M. a mainstream ESY
program just because it does not already operate such a program. Once
Cornwall’s CSE determined that T.M. required a twelve‐month educational
program in order to prevent substantial regression in his development, see N.Y.
Comp. Codes R. & Regs. tit. 8, § 200.6(k)(1)(v), the IDEA required Cornwall to
offer T.M. that program in the least restrictive environment consistent with his
needs—namely, a mainstream classroom with supplementary aids and services.
Cornwall instead offered T.M. a more restrictive ESY placement in a self‐
contained special education classroom. That proposed ESY placement violated
the LRE requirement, and so made the April 2010 IEP substantively inadequate.
Of course, that substantive violation alone does not entitle T.M.’s parents
to reimbursement for T.M.’s education at Butterhill. The parents must still satisfy
46
the second and third parts of the Burlington/Carter test, by showing that their
alternative placement for T.M. at Butterhill was appropriate and that equitable
considerations favor reimbursement. See Carter, 510 U.S. at 15–16; Burlington, 471
U.S. at 369–71. Because the district court erroneously concluded that there had
been no LRE violation, it did not address these issues. We therefore vacate the
district court’s judgment and remand for that court to consider the remaining
parts of the Burlington/Carter test in the first instance.9
If the district court finds that reimbursement is warranted, it should then
fashion an appropriate reimbursement award. See 20 U.S.C. § 1415(i)(2)(C)(iii)
(stating that the court “shall grant such relief as [it] determines is appropriate”).
That award need not include tuition reimbursement for the entire year covered
by the April 2010 IEP. If the LRE violation here affected only T.M.’s ESY program
in July and August 2010, for instance, it may be appropriate to award him tuition
reimbursement only for that period. We leave this issue open to the district
court’s discretion on remand.
9
We reject the parents’ argument that Cornwall was required to cross‐appeal on
the remaining parts of the Burlington/Carter test in order to preserve its right to contest
these issues. A party need not cross‐appeal in order to preserve alternative grounds for
affirmance. See Int’l Ore & Fertilizer Corp. v. SGS Control Servs., 38 F.3d 1279, 1286 (2d Cir.
1994).
47
b. Other Issues
The parents cursorily mention three other issues that, they claim, also
made the April 2010 and August 2010 IEPs substantively inadequate. We address
those issues briefly to make clear that the district court need not consider them on
remand.
First, the parents contend that the April 2010 IEP was substantively
inadequate because T.M. would not have been “suitably grouped” with children
of similar needs in the special education ESY program that Cornwall proposed.
See N.Y. Comp. Codes R. & Regs. tit. 8, § 200.6(a)(3). Because the parents failed to
raise this issue before the district court, however, we consider it forfeited. “[I]t is
a well‐established general rule that an appellate court will not consider an issue
raised for the first time on appeal,” unless it is “necessary to remedy an obvious
injustice.” Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994). Seeing no such
injustice here, we leave undisturbed the SRO’s determination that this “suitable
grouping” claim fails.10
Next, the parents twice in their opening brief mention the fact that both the
April 2010 and the August 2010 IEPs proposed to provide T.M.’s English and
10
We are not persuaded by the parents’ novel contention that this “suitable
grouping” argument and the LRE argument are so intertwined that raising the latter
also raised the former.
48
math classes for the academic year on a “pull out” basis, in a separate 12:1+1
special education classroom. To the extent that these comments seek to challenge
that aspect of the IEPs as overly restrictive, we consider the argument forfeited
both by the parents’ failure to raise it before the district court and by their failure
to brief it thoroughly on appeal. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d
Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and
normally will not be addressed on appeal.”); Greene, 13 F.3d at 586. In any case,
we defer here to the SRO’s determination (which is supported by the record) that
T.M. “required a special class setting for those two subjects in order to be
educated satisfactorily.” J.A. 1175. We therefore affirm the SRO’s determination
that the proposed English and math classes were not overly restrictive.
Finally, the parents’ opening brief twice characterizes the mainstream
kindergarten class that Cornwall proposed in the April 2010 and August 2010
IEPs as unduly large. That phrase may be meant to challenge the district court’s
holding that Cornwall did not deny T.M. a FAPE by placing him in a
kindergarten class with 25 students. If so, it is not enough to adequately raise the
issue. Norton, 145 F.3d at 117. Moreover, even if the issue were squarely
presented, the district court properly deferred to the SRO’s well‐reasoned
49
determination that the proposed class size was not too large for T.M.’s needs. We
therefore affirm that aspect of the district court’s decision.
3. Procedural Violations
T.M.’s parents also raise two alleged procedural violations affecting the
April 2010 and August 2010 IEPs: Cornwall’s failure to conduct an FBA or
prepare a BIP while developing the April 2010 and August 2010 IEPs, and its
failure to include parent counseling and training in the April 2010 IEP as part of
the proposed 2010 ESY program. Because these two issues might affect the
district court’s decision on remand, we address them now. We conclude that
neither asserted procedural violation can justify reimbursement.
a. FBA/BIP
The IDEA requires a school district to “consider the use of positive
behavioral interventions and supports, and other strategies” to address behavior
by a disabled child that “impedes the child’s learning or that of others.” 20 U.S.C.
§ 1414(d)(3)(B)(i). New York state regulations go beyond this floor set by the
IDEA; they require a school district to conduct a full FBA for a student who
exhibits behavior that impedes learning, and to develop a BIP to address that
behavior. See M.W., 725 F.3d at 139–40; R.E., 694 F.3d at 190; see also N.Y. Comp.
50
Codes R. & Regs. tit. 8, §§ 200.4(b)(1)(v), 200.22(b). Although the failure to
conduct an adequate FBA is a “serious procedural violation,” it “does not rise to
the level of a denial of a FAPE if the IEP adequately identifies the problem
behavior and prescribes ways to manage it.” R.E., 694 F.3d at 190; see also M.W.,
725 F.3d at 140.
Here, the IHO found that the district was required to conduct an FBA and
develop a BIP in order to address T.M.’s “interfering and inappropriate
behaviors,” including “distractibility, inattentiveness and difficulty remaining
on‐task, noncontextual vocalizations, finger twirling, etc.” J.A. 1073. The SRO
disagreed, finding that “any behaviors exhibited by [T.M.] were not of such a
frequency or degree so as to impede his learning or that of others,” and that his
IEPs correctly identified his problematic behavior and “adequately planned to
meet [his] behavioral needs.” J.A. 1170, 1172. The SRO therefore concluded that
Cornwall did not deny T.M. a FAPE by failing to conduct an FBA or develop a
BIP.
The SRO’s decision turns on her evaluation of whether T.M.’s behavior
would interfere with his learning, and whether Cornwall had taken adequate
steps to address that behavior. These fact‐specific educational questions are
51
“precisely the type of issue upon which the IDEA requires deference to the
expertise of the administrative officers.” A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d
165, 172 (2d Cir. 2009) (quoting Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 382
(2d Cir. 2003)). Here, the SRO’s decision is well‐reasoned and supported by the
record, and so the district court was correct to defer to her considered judgment.
We therefore affirm the district court’s holding that Cornwall did not deny T.M. a
FAPE by failing to conduct an FBA or prepare a BIP.
b. Parent Counseling and Training
T.M.’s parents next argue that the April 2010 IEP was inadequate because it
failed to provide for parent counseling and training as part of T.M.’s 2010 ESY
program, as required by N.Y. Comp. Codes R. & Regs. tit. 8, § 200.13(d). We have
previously described the failure to provide parent counseling as a procedural
violation that is “less serious than the omission of an FBA,” R.E., 694 F.3d at 191,
and noted that a “failure to provide counseling ordinarily does not result in a
FAPE denial or warrant tuition reimbursement,” M.W., 725 F.3d at 142.
T.M.’s parents did not raise this issue in either their July 2010 due process
complaint notice or their September 2010 amended notice. They also failed to
raise it before the district court. As such, this argument is forfeited. See 20 U.S.C. §
52
1415(f)(3)(B) (“The party requesting the due process hearing shall not be allowed
to raise issues . . . that were not raised in the [due process complaint] notice . . .
.”); Greene, 13 F.3d at 586 (2d Cir. 1994). Moreover, even if T.M.’s parents had
properly preserved this argument, Cornwall’s failure to include parent
counseling and training as part of T.M.’s ESY program was not a sufficiently
serious procedural violation to deny T.M. a FAPE. See M.W., 725 F.3d at 141–42;
R.E., 694 F.3d at 191.
c. Cumulative Effect
“[E]ven minor violations may cumulatively result in a denial of a FAPE.”
R.E., 694 F.3d at 191. Here, however, the procedural violations that T.M.’s parents
raise did not deny T.M. a FAPE either individually or cumulatively. These
asserted violations therefore cannot sustain the claim for reimbursement.
4. Conclusion
For the reasons given above, we hold that the April 2010 IEP violated the
IDEA’s LRE requirement by offering T.M. an ESY placement in a self‐contained
special education classroom rather than a mainstream classroom. We reject the
parents’ other claims of procedural and substantive inadequacy in the April 2010
and August 2010 IEPs. We therefore vacate the judgment below, and remand for
53
the district court to determine whether tuition reimbursement is appropriate
under the Burlington/Carter test and to fashion an appropriate remedy.
B. The Cross‐Appeal
On the cross‐appeal, Cornwall contends that the district court erred by
requiring it to continue reimbursing T.M.’s parents for pendency services that
they obtained for T.M. from private providers after the district offered to provide
those pendency services directly. We agree.
1. Legal Standard
The IDEA provides district courts with broad discretion to “grant such
relief as the court determines is appropriate” in order to carry out its statutory
mandate. 20 U.S.C. § 1415(i)(2)(C)(iii); see Burlington, 471 U.S. at 369. We review
the district court’s decision to enter a preliminary injunction in an IDEA case for
abuse of discretion. Malkentzos v. DeBuono, 102 F.3d 50, 54‐55 (2d Cir. 1996). A
district court abuses its discretion when its decision (1) rests on an error of law or
a clearly erroneous factual finding, or (2) cannot be found within the range of
permissible decisions. Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d
Cir. 2011).
54
As relevant here, the IDEA’s pendency provision states that “during the
pendency of any proceedings conducted pursuant to this section, unless the State
or local educational agency and the parents otherwise agree, the child shall
remain in [his or her] then‐current educational placement.” 20 U.S.C. § 1415(j).
That provision reflects Congress’s decision that all disabled children should keep
their existing educational program until any dispute over their placement is
resolved. See Mackey ex rel. Thomas M. v. Bd. of Educ., 386 F.3d 158, 160–61 (2d Cir.
2004); see also Honig v. Doe, 484 U.S. 305, 323–25 (1988). It therefore requires a
school district to continue funding whatever educational placement was last
agreed upon for the child until the relevant administrative and judicial
proceedings are complete. Mackey, 386 F.3d at 163.
Under our precedent, “the term ‘educational placement’ refers only to the
general type of educational program in which the child is placed.” Concerned
Parents & Citizens for the Continuing Educ. at Malcolm X (PS 79) v. N.Y.C. Bd. of
Educ., 629 F.2d 751, 753 (2d Cir. 1980); see also N.D. v. Haw. Dep’t of Educ., 600 F.3d
1104, 1115–16 (9th Cir. 2010). That is, the pendency provision does not guarantee
a disabled child the right to remain in the exact same school with the exact same
service providers while his administrative and judicial proceedings are pending.
55
Instead, it guarantees only the same general level and type of services that the
disabled child was receiving. See Concerned Parents, 629 F.2d at 756 (finding no
change in educational placement where disabled students were transferred from
one school to another but “remain[ed] in the same classification, the same school
district, and the same type of educational program special classes”).
2. Analysis
As described above, Cornwall originally refused to provide T.M. any
pendency services, relying on the October 2009 stipulation of settlement. After
the IHO’s decision, however, Cornwall conceded that T.M. was entitled to the
services described in his May 2009 IEP as pendency services. It therefore
reimbursed T.M.’s parents for the amount they had spent on those services in the
2010–2011 year. It then offered to provide the exact same services directly
through its own providers for the 2011–2012 year, rather than paying T.M.’s
private providers for those services. T.M.’s parents rejected that offer, insisting
that Cornwall was obligated to continue paying to provide T.M’s services
through the private providers that he was already using.
The district court agreed with T.M.’s parents. It held that because Cornwall
had initially refused to provide T.M.’s pendency services directly, it could not
56
now force T.M. to switch from his private providers to Cornwall’s own
providers. “To change T.M.’s providers,” the district court held, “would deprive
him of the stability and consistency afforded by the pendency provision.” J.A.
1396. It therefore ordered Cornwall to continue paying for T.M. to obtain his
pendency services from his private providers until these proceedings are finally
adjudicated.
We conclude that the district court erred by ordering Cornwall to pay the
full cost of providing T.M.’s pendency services through private providers. The
IDEA’s pendency provision does not entitle a disabled child to keep receiving
services from the exact same service providers while his proceedings are
pending; instead, it only entitles the child to receive the same general type of
educational program. Concerned Parents, 629 F.2d at 753. It is up to the school
district to decide how to provide that educational program, at least as long as the
decision is made in good faith. See id. at 756.
The same rule remains true even where, as here, a school district initially
refuses to provide pendency services directly. Although Cornwall was wrong to
deny T.M. pendency services in the first place, the IDEA does not bar Cornwall
57
from subsequently correcting its mistake and offering to provide the required
pendency services directly.
The district court therefore erred in believing that Cornwall was obligated
to afford T.M. “stability and consistency” by keeping him with the same private
service providers. Cornwall satisfied its duties under 20 U.S.C. § 1415(j) by
reimbursing T.M.’s parents for the amount they spent on his pendency services in
the 2010–2011 year, and by offering to provide the required pendency services
directly from that point onwards. When T.M.’s parents rejected Cornwall’s offer
to provide pendency services directly for the 2011–2012 year, they took
responsibility for the cost of obtaining those services from private providers. Cf.
Burlington, 471 U.S. at 373–74 (“[P]arents who unilaterally change their child’s
placement during the pendency of review proceedings, without the consent of
state or local school officials, do so at their own financial risk.”). Cornwall
therefore cannot be required to bear whatever additional cost was incurred by the
parents’ decision to keep T.M. with his private service providers rather than
accepting the same services directly from Cornwall.
At the same time, under the circumstances presented here, we believe it is
within the district court’s authority to order Cornwall to reimburse T.M.’s
58
parents for pendency services up to the amount that it would have cost Cornwall
itself to provide the required pendency services from July 2011 through the end
of the present school year. That remedy would leave Cornwall no better and no
worse off than it would have been if T.M.’s parents had accepted for T.M. the
pendency services that Cornwall was required to provide. Cf. Burlington, 471 U.S.
at 370–71 (“Reimbursement merely requires the Town to belatedly pay expenses
that it should have paid all along and would have borne in the first
instance . . . .”). It would also avoid the unfairness of denying T.M.’s parents all
reimbursement for the private services that they obtained for T.M. after the IHO,
and later the district court, assured them that Cornwall was required to pay for
those services. Lastly, it would account for the fact that by refusing to provide
T.M.’s pendency services in the first instance, Cornwall led T.M. to develop a
deeper relationship with his private providers, and so made it more difficult for
him to later accept pendency services directly from Cornwall. 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 Cornwall would have spent to
provide T.M.’s pendency services directly from July 2011 through the end of the
current school year. If the present dispute extends into future school years, of
59
course, and Cornwall offers to provide T.M.’s pendency services directly for
those years, then T.M.’s parents must either accept that offer for T.M. or else take
on the full cost of obtaining the necessary services from private providers.
CONCLUSION
For the reasons stated above, the judgment of the district court is VACATED and
the case is REMANDED for further proceedings consistent with this opinion.
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T.M. v. Cornwall Central School District
Combined Opinion