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New Precedent Extending The LRE Mandate to

ESY Summer Programs


This article was written by Karen Norlander, Esq., counsel to CNYSEA and. on the brief to the Circuit with Christopher Langlois, Esq. from Girvin & Ferlazzo, P.C. 


 
SECOND CIRCUIT COURT OF APPEALS SETS NEW PRECEDENT
           EXTENDING THE LRE MANDATE TO ESY SUMMER PROGRAMS
            

On April 2, 2014, with summer on its way, the United States Court of Appeals issued a far reaching decision in T.M. v. Cornwall Central School District [1] with major and immediate implications for all public schools throughout New York, Connecticut and Vermont. Finding that Congress intended to apply the same LRE mandate applicable to the normal school year to ESY summer placements for students with disabilities who require them, the Court made no exception for districts that do not run summer school programs for nondisabled peers. Finding that the Cornwall Central School District violated the rights of a 6 year old child to a free and appropriate public education recommended for ESY services who was able to be educated successfully in at least some regular education classes with supports and services during the 10 month school year, the Court held that its failure to recommend them in a regular class setting with nondisabled peers violated his right to a FAPE.


In reaching its decision, the Court acknowledged that school districts that do not currently run summer school programs for nondisabled students are not required to create them to meet its mandate. Instead,  the Court’s decision instructs them to take whatever steps are necessary to locate and arrange for ESY programs either through another public agency or a private school. For districts that are unable to locate a regular class setting to provide ESY services to those students entitled to them, the Court opined that in those cases “if practical issues make it objectively impossible or impracticable [for the school district] to provide a disabled student an ESY program in his LRE, the equitable calculus may weigh against reimbursement.”  In effect, this decision provides a basis for courts and hearing officers to find an automatic violation of a student’s right to FAPE in those cases where a district is unable to locate an integrated class setting to provide ESY services to any student able to benefit from instruction in regular classes during the school year.


According to its guidance, the State Education Department has traditionally taken a different view that limited the LRE mandate to cases where a student’s skill areas identified to be in need of ESY services required an integrated setting to prevent substantial regression and suggested other sites beyond the regular classroom to locate them. See http://www.p12.nysed.gov/specialed/applications/ESY/2014-QA.pdf.


We are seeking further guidance from the State Education Department in regard to the impact of this Court’s ruling. Regardless, however, this decision has immediate impact on all school districts throughout the state, recommending special class placements for students with disabilities who require summer programs to prevent substantial regression over the summer months who are otherwise able to benefit from instruction in regular classes with supports and services during the school year. According to the Second Circuit Court of Appeals, such placements are in violation of the student’s right to a FAPE, with all of the IDEA remedies available including claims for tuition reimbursement. In an effort to limit the impact of this decision, the District has filed a Petition to the Second Circuit requesting en banc review.


At a minimum, this means that all districts should seek to identify such students now and go back to carefully consider and document the availability of any regular class programs run by other districts or private school within a reasonable distance of your districts that run such programs.   Where, despite all efforts it is impossible to do so, the Committee should take great care to discuss LRE in every meeting involving students with disabilities who have benefitted from instruction during the school year in regular classes, whether co-taught or with consultant teacher support, and discuss and document in your PWN and IEP all efforts to locate a regular class setting for the delivery of their summer program or services.   Consistent with longstanding policy from the State Education Department, it also remains a school district’s obligation to secure such placements where the Committee determines that the student requires an ESY program with nondisabled peers in order to prevent substantial regression in the targeted skill areas. In view of the extraordinary impact of this decision, the District has filed a petition to the Court to seek review. In the meantime, the decision and its ruling remains in full effect.

This article was written by Karen Norlander, Esq., counsel to CNYSEA and. on the brief to the Circuit with Christopher Langlois, Esq. from Girvin & Ferlazzo, P.C.   Special thanks to Mr. Langlois and Susan Fine, Esq. of Harris Beach for their invaluable insights regarding the impact of this decision on t public schools.    

 



[1] A copy of the full decision can be found at http://www.ca2.uscourts.gov/decisions/isysquery/530c70b4-106b-4401-8d43-31f7d9ae8e3a/7/doc/12-4301_opn.pdf.url. The relevant discussion regarding summer programs begins on page 31.


LEGAL ALERT:   
SECOND CIRCUIT COURT OF APPEALS SETS NEW PRECEDENT
           EXTENDING THE LRE MANDATE TO ESY SUMMER PROGRAMS
On April 2, 2014, with summer on its way, the United States Court of Appeals issued a far reaching decision in T.M. v. Cornwall Central School District   with major and immediate implications for all public schools throughout New York, Connecticut and Vermont.  Finding that Congress intended to apply the same LRE mandate applicable to the normal school year to ESY summer placements for students with disabilities who require them, the Court made no exception for districts that do not run summer school programs for nondisabled peers. Finding that the Cornwall Central School District violated the rights of a 6 year old child to a free and appropriate public education recommended for ESY services who was able to be educated successfully in at least some regular education classes with supports and services during the 10 month school year, the Court held that its failure to recommend them in a regular class setting with nondisabled peers violated his right to a FAPE.  
In reaching its decision, the Court acknowledged that school districts that do not currently run summer school programs for nondisabled students are not required to create them to meet its mandate. Instead,   the Court’s decision instructs them to take whatever steps are necessary to locate and arrange for ESY programs either through another public agency or a private school.  For districts that are unable to locate a regular class setting to provide ESY services to those students entitled to them,  the Court opined that in those cases “if practical issues make it objectively impossible or impracticable [for the school district] to provide a disabled student an ESY program in his LRE, the equitable calculus may weigh against reimbursement.”    In effect, this decision provides a basis for courts and hearing officers to find an automatic violation of a student’s right to FAPE in those cases where a district is unable to locate an integrated class setting to provide ESY services to any student able to benefit from instruction in regular classes during the school year.  
According to its guidance, the State Education Department has traditionally taken a different view that limited the LRE mandate to cases where a student’s skill areas identified  to be in need of ESY services required an integrated setting to prevent substantial regression and suggested other sites beyond the regular classroom to  locate them. See  http://www.p12.nysed.gov/specialed/applications/ESY/2014-QA.pdf.   We are seeking further guidance from the State Education Department in regard to the impact of this Court’s ruling.  Regardless, however, this decision has immediate impact on all school districts throughout the state, recommending special class placements for students with disabilities who require summer programs to prevent substantial regression over the summer months who are otherwise able to benefit from instruction in regular classes with supports and services during the school year. According to the Second Circuit Court of Appeals, such placements are in violation of the student’s right to a FAPE, with all of the IDEA remedies available including claims for tuition reimbursement.   In an effort to limit the impact of this decision, the District has filed a Petition to the Second Circuit requesting en banc review.  
At a minimum, this means that all districts should seek to identify such students now and go back to carefully consider and document the availability of  any regular class programs run by other districts or private school  within a reasonable distance of your districts that run such programs.    Where, despite all efforts it is impossible to do so, the Committee should take great care to discuss LRE in every meeting involving students with disabilities who have benefitted from instruction during the school year in regular classes, whether co-taught or with consultant teacher support, and discuss and document in your PWN and IEP all efforts to locate a regular class setting for the delivery of their summer program or services.   Consistent with longstanding policy from the State Education Department, it also remains a school district’s obligation to secure such placements where the Committee determines that the student requires an ESY program with nondisabled peers in order to prevent substantial regression in the targeted skill areas.  In view of the extraordinary impact of this decision, the District has filed a petition to the Court to seek review.  In the meantime, the decision and its ruling remains in full effect. 
This article was written by Karen Norlander, Esq., counsel to CNYSEA and. on the brief to the Circuit with Christopher Langlois, Esq. from Girvin & Ferlazzo, P.C.   Special thanks to Mr. Langlois and Susan Fine, Esq. of Harris Beach for their invaluable insights regarding the impact of this decision on t public schools.     




LEGAL ALERT:   
SECOND CIRCUIT COURT OF APPEALS SETS NEW PRECEDENT
           EXTENDING THE LRE MANDATE TO ESY SUMMER PROGRAMS
On April 2, 2014, with summer on its way, the United States Court of Appeals issued a far reaching decision in T.M. v. Cornwall Central School District   with major and immediate implications for all public schools throughout New York, Connecticut and Vermont.  Finding that Congress intended to apply the same LRE mandate applicable to the normal school year to ESY summer placements for students with disabilities who require them, the Court made no exception for districts that do not run summer school programs for nondisabled peers. Finding that the Cornwall Central School District violated the rights of a 6 year old child to a free and appropriate public education recommended for ESY services who was able to be educated successfully in at least some regular education classes with supports and services during the 10 month school year, the Court held that its failure to recommend them in a regular class setting with nondisabled peers violated his right to a FAPE.  
In reaching its decision, the Court acknowledged that school districts that do not currently run summer school programs for nondisabled students are not required to create them to meet its mandate. Instead,   the Court’s decision instructs them to take whatever steps are necessary to locate and arrange for ESY programs either through another public agency or a private school.  For districts that are unable to locate a regular class setting to provide ESY services to those students entitled to them,  the Court opined that in those cases “if practical issues make it objectively impossible or impracticable [for the school district] to provide a disabled student an ESY program in his LRE, the equitable calculus may weigh against reimbursement.”    In effect, this decision provides a basis for courts and hearing officers to find an automatic violation of a student’s right to FAPE in those cases where a district is unable to locate an integrated class setting to provide ESY services to any student able to benefit from instruction in regular classes during the school year.  
According to its guidance, the State Education Department has traditionally taken a different view that limited the LRE mandate to cases where a student’s skill areas identified  to be in need of ESY services required an integrated setting to prevent substantial regression and suggested other sites beyond the regular classroom to  locate them. See  http://www.p12.nysed.gov/specialed/applications/ESY/2014-QA.pdf.   We are seeking further guidance from the State Education Department in regard to the impact of this Court’s ruling.  Regardless, however, this decision has immediate impact on all school districts throughout the state, recommending special class placements for students with disabilities who require summer programs to prevent substantial regression over the summer months who are otherwise able to benefit from instruction in regular classes with supports and services during the school year. According to the Second Circuit Court of Appeals, such placements are in violation of the student’s right to a FAPE, with all of the IDEA remedies available including claims for tuition reimbursement.   In an effort to limit the impact of this decision, the District has filed a Petition to the Second Circuit requesting en banc review.  
At a minimum, this means that all districts should seek to identify such students now and go back to carefully consider and document the availability of  any regular class programs run by other districts or private school  within a reasonable distance of your districts that run such programs.    Where, despite all efforts it is impossible to do so, the Committee should take great care to discuss LRE in every meeting involving students with disabilities who have benefitted from instruction during the school year in regular classes, whether co-taught or with consultant teacher support, and discuss and document in your PWN and IEP all efforts to locate a regular class setting for the delivery of their summer program or services.   Consistent with longstanding policy from the State Education Department, it also remains a school district’s obligation to secure such placements where the Committee determines that the student requires an ESY program with nondisabled peers in order to prevent substantial regression in the targeted skill areas.  In view of the extraordinary impact of this decision, the District has filed a petition to the Court to seek review.  In the meantime, the decision and its ruling remains in full effect. 
This article was written by Karen Norlander, Esq., counsel to CNYSEA and. on the brief to the Circuit with Christopher Langlois, Esq. from Girvin & Ferlazzo, P.C.   Special thanks to Mr. Langlois and Susan Fine, Esq. of Harris Beach for their invaluable insights regarding the impact of this decision on t public schools.