Gary Mayerson
Attorney Gary Mayerson of Mayerson & Associates, who represented the plaintiffs and is on the board of the nonprofit group Autism Speaks (autismspeaks.org)

A key provision of the Individuals with Disabilities Education Act applies to extended school-year placements for children who require 12-month programs, a federal appeals court has ruled.

The U.S. Court of Appeals for the Second Circuit held that the requirement that school districts place special-needs children in the “least-restrictive environment” applies to extended-year placements (ESYs) under the act, 20 U.S.C. 1412(a)(5)(A).

The circuit on April 2 reversed a lower court in litigation over the placement of an autistic child in T.M. v. Cornwall Central School District, 12-4484, with Judges Robert Katzmann (See Profile), Amalya Kearse (See Profile) and Richard Wesley (See Profile) remanding the case to Southern District Judge Vincent Briccetti (See Profile).

“Once Cornwall’s Committee on Special Education determined that T.M. needed a 12-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,” Katzmann wrote for the circuit.

Attorney Gary Mayerson of Mayerson & Associates, a six-person firm in Manhattan, represented the plaintiffs.

Mayerson, who has been litigating special-needs cases for 15 years, is on the board of the nonprofit group Autism Speaks. He heard the news about the circuit’s decision upon returning to his office on April 2 after addressing a gathering at the United Nations on World Autism Awareness Day.

“The autism community and the special education community are greatly relieved to see the Second Circuit acknowledging that if a student can benefit from inclusion, then education in the least-restrictive environment doesn’t stop for summer vacation,” Mayerson said Monday.

T.M., now 9, was classified as a preschooler with a disability when he was 3, educated in a private preschool and then entered the public schools in 2009.

The town of Cornwall in 2009 developed an individualized education program for the boy that included some education in mainstream classes but also some one-on-one teaching; special physical, language and speech therapy; as well as counseling and training for his parents.

But the parents and school officials disagreed over Cornwall’s proposed ESY program in 2010 and the parents placed their son in a private school.

In May 2011, an independent hearing officer found that the ESY program was overly restrictive because it placed T.M. in a special education classroom rather than a general eduction setting, despite Cornwall’s objection that it did not run a mainstream program in the summer.

The hearing officer, who also found the school-year plan insufficient, ordered the district to reimburse T.M.’s parents for private school tuition for the 2010-11 academic year.

While Cornwall provided reimbursement, the parents again placed their son in private school for 2011-12 and again sought reimbursement.

Cornwall had some success on appeal, with a reviewing officer finding it was not required to pay reimbursement for services after June 30, 2011, and ruling that the hearing officer had erred in several respects, finding the school system had properly offered T.M. an appropriate education.

Briccetti in September 2011 granted summary judgment for Cornwall, finding the school had properly offered an appropriate education and that the ESY program for summer 2010 did not violate the act, writing that the boy’s parents had “not shown that a less-restrictive placement option was available to T.M. but not offered.”

In the circuit’s opinion, Katzmann said “it is undisputed that T.M. was able to achieve a satisfactory education in a regular classroom” with the use of supplementary aids and services.

“It is equally clear that Cornwall did not offer T.M. an ESY placement in a mainstream classroom for the summer of 2010,” he said. “Instead, both the ESY placements that Cornwall offered—namely, Cornwall’s own half-day special education program” and a full-day program—”were self-contained education classrooms with no nondisabled students.”

Katzmann said the circuit panel was rejecting Cornwall’s argument that the “least-restricted environment” requirement applies differently to a 12-month program.

“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 12-month program,” he said, adding that the requirement is not limited, “in the ESY context, by what programs the school district already offers.”

Mayerson said the circuit opinion clarifies the landscape for both parents and school systems.

“This issue has been somewhat cloudy, unfortunately, over the years, with parents not knowing what to do,” he said. “The circuit was very focused on the continuum of services and this will make schools enhance their services. With any disability, but particularly with autism, consistency is so important.”

Christopher Langlois of Girvin & Ferlazzo argued for Cornwall. Because the case is pending and headed back to Briccetti, Langlois declined comment.