Almost all students lose skills over the summer months, and the beginning of the school year typically includes some time for review. Students with a disability are eligible for “extended school year” (ESY) services if the district’s committee on special education (CSE) determines they would suffer substantial regression – that is, they would require more than 20 to 40 school days to recoup skills lost over the summer.

Also, it is a hallmark of the federal Individuals with Disabilities Education Act (IDEA), and its forerunner, the Education for All Handicapped Children Act, that special education must be provided in the least restrictive environment (LRE) in which a student can make meaningful progress. This means educating students with disabilities, to the maximum extent appropriate, alongside typically developing peers in settings as close as possible to the student’s home.

In an April 2 ruling that significantly changes an aspect of the special education landscape, the U.S. Court of Appeals for the Second Circuit considered how the least restrictive environment requirement applied to the case of a five-year-old boy with autism whom the district had determined was entitled to extended school year services.

In T.M. v. Cornwall Central School District, the district had proposed to place the boy in a self-contained special education classroom for the summer without considering other placement options. While the parents wanted him placed in an integrated classroom with general education students, the district did not offer a summer program for general education students. Unsatisfied, the parents enrolled their son in a private integrated setting and subsequently sought reimbursement, asserting that the district failed to provide extended school year services in the least restrictive environment.

The court ruled in favor of the parents.

“Under the IDEA, a disabled student’s least restrictive environment refers to the least restrictive educational setting consistent with that student’s needs, not the least restrictive setting that the school district chooses to make available,” said the Second Circuit, which has jurisdiction over federal cases in New York.

The court said the least restrictive environment requirement “applies in the same way to ESY placements as it does to school-year placements.” This means that the CSE must consider the appropriate setting from among the continuum of services in which a student’s special education needs can be met during the summer months. Meeting LRE requirements may require placement in an integrated setting, an out-of-district public school or a private school.

Historically, committees on special education have given little consideration to providing ESY services in integrated settings for the simple reason that, in the absence of a mandate, many public schools do not run summer school programs for nondisabled students. Prior to the ruling in the T.M. case, this view was supported by the U.S. Department of Education, the New York State Education Department and courts outside the Second Circuit:

• In 1989, the U.S. Department of Education’s Office of Special Education Programs (OSEP) issued two policy letters (both entitled Letter to Myers) that said the only circumstance in which a district would have to provide integrated extended school year services would be if a disabled student needs interaction with typically developing children over the summer to prevent substantial regression.
• The New York State Education Department published essentially the same view as OSEP in a guidance document called Extended School Year Programs and Services Questions and Answers (http://www.p12.nysed.gov/specialed/applications/ESY/2014-QA.pdf).
• In T.R. v. Kingwood Township Bd. of Educ. (2000), the Court of Appeals for the Third Circuit held that school districts need not create a regular education program solely to provide a student with a disability with a less restrictive environment over the summer. The court cautioned, however, that reasonably local mainstream options should be considered.
• A federal district court in Pennsylvania found in Travis G. v. New Hope-Solebury Sch. Dist (2008) that where no mainstream summer options were available, placements in non-integrated settings for summer programs did not deny students a free appropriate public education (FAPE).

In T.M., the Second Circuit took a different view. It ruled that T.M.’s school district was required “to consider a full continuum of alternative placements and then offer T.M. the least restrictive placement from that continuum … appropriate for his needs.”  The Second Circuit explained that not every conceivable ESY environment along the continuum had to be explored, but rather, in accordance with federal regulations, regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions should be available. 

The court concluded, solely on the basis that the proposed ESY placement violated the LRE mandate, that the district had denied FAPE to T.M. and remanded to a lower court for further action. The Second Circuit suggested that reimbursing the parents for the cost of private summer services might be a fair remedy if the conditions for such relief are met. The court also suggested that if reasonably local mainstream public or approved private settings do not exist, a parent may not be entitled to tuition reimbursement.

The decision in T.M. changes the special education landscape in two ways. First, a district’s CSE will have to take steps to consider whether a student determined to be eligible for extended school year services is able to receive appropriate special education instruction in a regular education setting and, if so, look for a setting with nondisabled peers to deliver them. Second, parents – and attorneys who represent them – may commence impartial hearings solely on the issue of whether extended school year services were offered in a given student’s LRE.

It is worth noting that relatively few students are likely to require an integrated setting over the summer to provide FAPE in New York State. Part 200 of the commissioner’s regulations contemplate extended school year services for students whose needs are so intensive that the CSE determines their needs can only be addressed in classes that exclusively serve students with disabilities. Such students would not be entitled to mainstreaming during the summer months.

However, school districts must also offer extended school year services to any students with individualized education programs who are being educated in regular education or integrated settings during the regular school year and who are eligible for extended school year services. That population may include higher functioning students with autism spectrum disorders and students with significant learning disabilities in one area who are otherwise cognitively intact.

In order to fulfill its obligations under the T.M. decision, a district’s CSE should consider the following when recommending extended school year services for students placed in general education or co-teaching settings during the school year. First, the CSE should discuss the options, including mainstream options, along the continuum of services that are available during the summer. For instance, school districts might consider providing disabled students in ESY programs the opportunity to interact with non-disabled students by having them participate in summer recreational programs run by outside groups on school grounds.

Second, the CSE should recommend a placement in the least restrictive summer setting available from which the student can benefit.

Third, the prior written notice (PWN) provided to parents should indicate the following: (1) the CSE considered the continuum of services in reaching the placement decision, (2) the CSE selected the least restrictive available option to benefit the student, and (3) if applicable, efforts have been made to identify a summer location that offered the student an opportunity to interact with non-disabled peers, but no reasonably local less restrictive option was available.

By following the steps outlined above, a district can document that it made every effort to locate a less restrictive option before placing a student with a disability who can benefit from a mainstream setting in a more restrictive program for ESY services. In light of the T.M. decision, this may be the only way to limit a school district’s exposure to liability.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Susan E. Fine of Harris Beach PLLC and Karen S. Norlander of Girvin & Ferlazzo, PC.