       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Kenton County Sch. Dist. v.           Nos. 02-6027/6028
   ELECTRONIC CITATION: 2004 FED App. 0302P (6th Cir.)         Hunt, et al.
               File Name: 04a0302p.06
                                                                              _________________
UNITED STATES COURT OF APPEALS                                                     COUNSEL
              FOR THE SIXTH CIRCUIT                       ARGUED: Richard G. Meyer, DETERS, BENZINGER &
                _________________                         LAVELLE, Covington, Kentucky, for Appellant. Randy J.
                                                          Blankenship, ROBBINS, KELLY, PATTERSON &
KENTON COUNTY SCHOOL             X                        TUCKER, Cincinnati, Ohio, for Appellees. ON BRIEF:
DISTRICT,                         -                       Richard G. Meyer, DETERS, BENZINGER & LAVELLE,
          Plaintiff-Appellant,    -                       Covington, Kentucky, for Appellant. Randy J. Blankenship,
                                  -   Nos. 02-6027/6028   ROBBINS, KELLY, PATTERSON & TUCKER, Cincinnati,
                                  -                       Ohio, for Appellees.
           v.                      >
                                  ,                                           _________________
                                  -
JEFFREY HUNT and LYNN             -                                               OPINION
HUNT ,                            -                                           _________________
        Defendants-Appellees. -
                                  -                         KENNEDY, Circuit Judge. In this Individuals with
                                 N                        Disabilities Education Act (“IDEA”) case, Plaintiff Kenton
      Appeal from the United States District Court        School District (“District”) appeals the order from the district
   for the Eastern District of Kentucky at Covington.     court that upheld the decision by the Kentucky Exceptional
  Nos. 01-00138; 01-00139—William O. Bertelsman,          Children Appeals Board (“ECAB”) requiring the District to
                     District Judge.                      reimburse Jason Hunt’s parents for expenses relating to (1)
                                                          his summer placement at two different programs in 1997 and
               Argued: March 18, 2004                     1998; and (2) his year-long placement at Chileda
                                                          Rehabilitation Institute during 1999-2000. The district court
        Decided and Filed: September 9, 2004              agreed with the ECAB that the District failed to provide Jason
                                                          Hunt with a free appropriate public education (“FAPE”)
  Before: KENNEDY, ROGERS, and COOK, Circuit              during all years in question and that the reimbursement was,
                   Judges.                                therefore, required. On this appeal, the District argues that
                                                          the district court and the ECAB improperly decided issues
                                                          that were not raised before the hearing officer, who found in
                                                          favor of the District. We reverse because neither the ECAB
                                                          nor the district court conducted a full factual inquiry into (1)
                                                          whether Jason Hunt needed extended school year (“ESY”)
                                                          services to justify summer programs in 1997 and 1998; (2)
                                                          whether Jason’s individualized education program (“IEP”)

                           1
Nos. 02-6027/6028          Kenton County Sch. Dist. v.       3    4       Kenton County Sch. Dist. v.                 Nos. 02-6027/6028
                                          Hunt, et al.                    Hunt, et al.

denied him FAPE for the 1999-2000 school year, warranting         1992-1995.1 Julie Tyner, the student’s teacher and the
a private placement; (3) whether the District, with additional    principal of Redwood for 14 years, testified that Redwood is
evidence presented in the district court, established that the    a recreational program that uses no IEP’s for students, nor do
IEP for 1999-2000 was not deficient; and (4) whether that         they have behavior management plans.
evidence should have been presented in earlier proceedings
before the hearing officer and the ECAB.                            Jason began the 1996-97 school year at White’s Tower
                                                                  Elementary (“White”). His IEP, dated October 2, 1996,
                     BACKGROUND                                   included the following goals: (1) to improve intelligibility
                                                                  through correct speech sound production; (2) to improve
  This case involves a reimbursement claim under the IDEA.        expressive language skills; (3) to improve personal skills
Parents of Jason Hunt filed a claim seeking reimbursement for     (greeting another person); (4) to improve reading
expenses related to (1) their decision to place Jason in a        comprehension skills; (5) to improve cutting skills; (6) to
behavior management program at Bancroft Rehabilitation            improve eating habits; (7) to improve writing skills; and (8)
Center in New Jersey (“Bancroft”) for 12 weeks in the spring      to improve math skills (time and money). Related services
and summer of 1997, (2) their decision to place Jason in a        included occupational therapy (“OT”) (both direct services
summer program at Chileda Rehabilitation Institute in             and consultation), speech therapy, and daily transportation.
LaCrosse, Wisconsin (“Chileda”), and (3) their decision to        Mrs. Hunt signed the Conference Summary (containing
place Jason at Chileda from March 1999 through August             minutes of the meeting) and indicated that Parent’s Rights
2000.                                                             were explained and a copy was given to her. On April 24,
                                                                  1997, an Admission and Release Committee (“ARC”)
  Jason Hunt was born in Houston, Texas on July 27, 1988.         meeting was held at parents’ request “to discuss OT and
He has been diagnosed as having (1) double spastic                progress.” Apparently, Mr. and Mrs. Hunt felt that their son
hemiplegic cerebral palsy with greater right sided                was regressing in fine motor skills and behavior due to lack
involvement and (2) delayed cognitive and communication           of direct OT services, despite the implementation of the IEP.
development. As a result, it was recommended that Jason be        They also had concerns about toilet training and behavior. As
enrolled in an integrated developmental preschool program         a result of the meeting, ARC changed OT to direct service
with a strong language component. Jason enrolled in               and added toilet training to the IEP for the 1997-98 school
preschool in the Kenton County School District on                 year. To facilitate the accomplishment of toilet training, it
August 26, 1992. Since behavior was a continuing issue for        was decided that Jason’s parents would meet with Dr. Perkins
Jason, behavior plans were developed and implemented in
1993, 1994, and 1995. His toileting needs were addressed in
an IEP for the 1993-94 school year. The District determined           1
                                                                         The due process hearing officer noted that “[t]estimony was given
that he was a student with disability, and that he qualified to   that the student was placed for participation in a recreational program that
receive a free appropriate public education. On October 26,       the parents felt provided structure and socialization for the student in the
1992, an individualized education plan was developed for          summers of 1994, 1995, 1996.” J.A. at 26. The hearing officer
Jason. Mr. and Mrs. Hunt placed Jason at the Redwood              discounted the inco nsistency, stating that “[r]egardless o f spec ific dates
Rehabilitation Center (“Redwood”) during the summers of           of attendance, Redwood was a full day program, and the student placed
                                                                  there by his parents, attended from two to five days a week for three
                                                                  weeks each year in attendance.” Id.
Nos. 02-6027/6028                Kenton County Sch. Dist. v.              5    6       Kenton County Sch. Dist. v.                Nos. 02-6027/6028
                                                Hunt, et al.                           Hunt, et al.

to discuss the possibility of funding for the Bancroft                         discuss behavior issues. The summary noted that the
program.2 A parent was present at this meeting and signed                      Bancroft program was being used by the school personnel.
the Conference summary.                                                        However, it took three adults to carry out all the necessary
                                                                               procedures and Jason would be very angry after they were
   Jason was placed by his parents at Bancroft in the                          done. It also noted that he seemed to have a very difficult
Neurobehavioral Stabilization Unit from April 28, 1997 until                   time in the inclusionary classroom setting, and appeared to be
July 20, 1997. Upon his return home, two of his teachers                       over-stimulated by the regular classroom. On the other hand,
from White, Janet Fay and Mike Burdge were trained in the                      the summary noted that there were notable improvements in
implementation of the program by a Bancroft representative.                    language skills, self-help skills, hand-writing, and toilet-
Upon completion of training they seemed knowledgeable and                      training. It was decided at the meeting to “[d]evelop new IEP
enthusiastic about the treatment plans, and felt the school                    within self-contained sp[ecial] ed[ucation] setting; use three
would be able to successfully implement all aspects of the                     step approach to behavior compliance (Bancroft) without
treatment. Gil Damon, behavioral team leader from Bancroft,                    visual screening.”3 Jason’s mother was present and signed
did testify that he expected “in an unstructured environment                   the Conference Summary report.
without any treatment, that Jason’s rates would go back to
baseline” and that they “did not replicate what his academic                     On March 11, 1998, an ARC was convened to review
schedule would be in the school district.” J.A. at 28.                         Jason’s program. It was decided that placement would
                                                                               continue as Multiple Disabilities with assistive technology
  Jason continued his education at White during the 1997-98                    adaptations. Both parents attended this meeting and agreed
year. Janet Fay and Mike Burdge were his teachers. A new                       that the transition to the regular classroom should begin, that
IEP was developed on October 13, 1997 for the upcoming                         Jason had “improved behaviorally,” and that he “is doing well
school year. It included the following goals: (1) improving                    in reading and spelling.” One of the parents signed the
math skills with coins and time; (2) improving social skills by                Conference Summary. An ARC was convened on March 26,
decreasing tantruming; (3) improving vocational functioning                    1998, to discuss behavior issues. The IEP was reviewed on
by buttoning and snapping; (4) improving written expression                    that date and it was decided that the school would
by writing legibly; (5) improving reading and comprehension;                   “temporarily reduce math time and allow medication changes
(6) improving expressive language skills; and (7) improving                    to take effect.” His parents were present and signed the
expressive communication by using correct speech sound                         Conference Summary. Another ARC was convened on
production. Related services included speech therapy of sixty                  June 1, 1998, to discuss re-evaluation results. As an
minutes a week, occupational therapy in two 30-minute                          explanation for rejecting the ESY option, the following
sessions a week, and daily transportation services. The
Conference Summary, dated October 13, 1997, indicated that
a meeting was called to review the current program and                             3
                                                                                     Gil Damon, a former behavioral team leader at Bancroft testified at
                                                                               the Due Process Hearing that visual screening involved “crossing Jason’s
                                                                               hands, crossing Jaso n’s arms and co ntrolling, gaining contro l of his arms
    2
                                                                               with one of your arms and using your other hand to place over his eyes,
     Bancroft claimed that it could toilet train Jason, reduce his behaviors   putting an index finger on the brow so as not to cause any injury to the
by 80% , and make him drug-free (Jason was taking Ritalin) as part of its      eye but basically to restrict Jason’s sight.” Damon Dep. at 32, J.A. at
twelve-week one-on-one program.                                                1721.
Nos. 02-6027/6028                Kenton County Sch. Dist. v.              7    8      Kenton County Sch. Dist. v.            Nos. 02-6027/6028
                                                Hunt, et al.                          Hunt, et al.

statement was written: “No data to support this.”4 Other                           medication adderol. Touching and spitting behaviors are
comments were: “His mother and teacher reported                                    primary behavior concerns. Using redirection seems to
improvements in bathroom skills. Jason will attend summer                          work best. The student is interacting with peers 59% of
school at Chileda . . .” Mrs. Hunt testified that the “ . . .                      the time each day. The student does not qualify for
[b]ehavior was an on-going problem and I felt like during the                      extended school year services. Parents expressed their
summer if he didn’t have a highly structured program where                         feelings that we don’t really have sufficient data to
we worked on his behavior as well as his social interaction                        qualify him because they personally fund his summer
that he would not do very well at the beginning of the school,                     programs. . . Discussion initiated by Mr. Burdge
the following school year.”                                                        concerning the need for consultative assistance on the
                                                                                   student. Mrs. Tyner suggested that Mr. Burdge contact
  Jason attended the summer program at Chileda from                                Dr. Lentz to see if he will enter into a limited contract for
June 15 until August 19, 1998. Chileda teacher, Chris                              seeing the student and working without staff.
Schalow, prepared a “Music Summary”; it was noted that                             Mr. Burdge will explore this option with help from
“social skills have improved as far as the sharing, turn taking,                   Mr. Hughes and the outcome reported to Mrs. Tyner.
being OK with others choosing activities.” Edith McBain,                           Other contacts will also be explored through the No. KY
another Chileda person, noted that Jason “does extremely well                      Co-op and personal contacts.
working independently. He displays several negative
behaviors when forced into group participation activities. My                    An IEP was developed with goals in the following areas:
recommendation to ensure success for Jason is to have him                      (1) improve speech sound production and use; (2) improve
work independently or with a very small group setting.”                        expressive language skills; (3) improve social competence in
                                                                               the area of behavior; (4) improve academic performance in
  Jason returned to White for the 1998-99 school year. The                     the areas of reading and writing; and (5) improve academic
ARC met on September 16, 1998, to conduct an annual                            performance in the area of math (money and time). The ARC
review and develop the IEP. A parent was present and signed                    chose placement in part-time regular/part-time special
the Conference Summary. The Summary noted:                                     education classes.
  Academic goals and objectives were accepted after a                            After the September 16, 1998, ARC meeting, Jason began
  review of last year’s IEP. Mr. Burdge reviewed behavior                      engaging in forced vomiting, both at home and at school. He
  data. Transitioning times appear to be better this year.                     was admitted to Franciscan Hospital for self-induced
  Teachers and parents report improvement since stopping                       vomiting, headbanging (at home only), and history of
                                                                               smearing feces. The discharge summary noted that he had
                                                                               recently “returned from a specialized behavior program in
    4                                                                          Wisconsin which he had attended through the summer
      On the topic of ESY, the hearing officer listened to testimony from
Mike Burdge, Jason’s teacher and State Coordinator for the Kentucky            because of his parents’ difficulty managing him. His parents
Alternate Portfolio Assessment, Linda Kelly, the school district’s head of     were hoping to have him return to that facility from the
psychological services, and M r. Hunt, Jason’s father. The hearing officer     hospital.” While Jason was in the hospital, another ARC
concluded that “there is no evidenc e that his IE P wa s not ap propriate to
the needs of the student, or that ESY services were required in order for
                                                                               meeting was held on October 20, 1998, at the parents’
the student to receive a FAPE.” J.A. at 40.                                    request, to discuss behavior concerns and placement. The
Nos. 02-6027/6028          Kenton County Sch. Dist. v.       9    10   Kenton County Sch. Dist. v.          Nos. 02-6027/6028
                                          Hunt, et al.                 Hunt, et al.

parents and, it appears for the first time, their attorney was    would be a small group setting in which he has performed
present. There was no discussion of ESY because of the            exceptionally well during two summer private placements; (3)
placement issues. Jason’s parents expressed their intent to       that when the option of least restrictive environment was
place Jason in a residential facility upon his release from the   discussed at the March, 1998 ARC meeting, the parents were
hospital at public expense. The following were their reasons      told that Kenton County did not have, nor have access to,
for residential placement: (1) concern that there was a general   such a facility, making this option wholly unavailable; and (4)
delay in behavioral skills affecting his academic performance     that Kenton County had refused “to provide or assist in
as compared to summer residential program at Chileda; (2)         payment for an extended school year from 1995 to 1998 on
residential placement allows for development of adaptive          the unsubstantiated premise that there was no apparent
behaviors with peers which is not being done effectively at       decline in academic performance and behavior, while we and
White; (3) concern that other more serious maladaptive            some of his educators have observed a substantial increase
behaviors might develop if Jason returned to the present          after Jason’s return to the Kenton County school system from
program at White; (4) the White placement does not include        two private placements during the summers of 1997 and
a full-time certified staff member through the IEP to work        1998.”
one-on-one with the student in an integrated setting.
                                                                    On March 18, 1999, Dr. Perkins responded, in a letter, to
  On March 8, 1999, Mr. Hunt sent a letter to Dr. Perkins,        Mr. Hunt’s accusations. Dr. Perkins expressed the opinion
notifying him that Chileda would have an opening for his son      that Kenton County had both the ability and the desire to
on March 19, 1999 and further expressing his dissatisfaction      provide Jason with an appropriate education. He indicated
with the White program because “Jason is not receiving an         that the White staff cared about Jason and worked very
appropriate free education in which his special needs are met.    diligently to provide one of the finest Special Education
As you are aware his IEP goals are not being met and his          programs in the District. He also thought that, with respect to
current placement has resulted in maladaptive behavior. We        outside placement, the White program was appropriate for
are very unhappy in the current placement, which has Jason        Jason but that they, nevertheless, recommended that Jason’s
in a room with an aide (non-certified staff member).” On          parents seek assistance from several agencies, including
March 16, 1999, Mr. Hunt sent another letter to Dr. Perkins       IMPACT and Comprehensive Care to better meet Jason’s
requesting copies of Jason’s records to facilitate his            needs. Dr. Perkins concluded: “My information is that you
enrollment at Chileda. Additionally, Mr. Hunt requested           have chosen not to use these resources, but chose to pursue
“Kenton County’s written position on paying the                   residential placement of your own. I fully realize that you
proportionate amount of state and federal funds received by       want to provide Jason with the best experiences and support
Kenton County to assist in the placement at Chileda in            that you can. However, the Kenton County Schools will not
accordance with the [IDEA] for education at the Chileda           provide financial support for a private program chosen by a
Institute.” Mr. Hunt also informed Mr. Perkins that the           parent outside of the school setting.”
family intended to file a formal complaint with the state
Division of Exceptional Children’s services regarding the
following items: (1) that Jason should never have been placed
in such a highly restrictive environment; (2) that he should
have been placed in the least restrictive environment which
Nos. 02-6027/6028                 Kenton County Sch. Dist. v.            11    12    Kenton County Sch. Dist. v.           Nos. 02-6027/6028
                                                 Hunt, et al.                        Hunt, et al.

   On March 22, 1999, Jason’s parents enrolled him at                          insisted that he could offer an appropriate program within the
Chileda, where he remained until August 20, 2000.5 In                          Kenton County system
anticipation of Jason’s enrollment as a 6th grader at Turkey
Foot Middle School in 2000-01, an ARC meeting was held on                         On May 23, 2000, a proposed ESY program for the summer
May 8, 2000 to develop an IEP. Mrs. Hunt was present at the                    of 2000 was faxed to the parents. The plan included the
meeting. She requested an ESY program for the summer of                        following features: (1) a certified teacher providing
2000 and an answer by May 15, 2000. Mrs. Hunt was                              instruction in all goals of the May 8, 2000 IEP for three days
informed that since Jason was not a current student, her                       a week for 8 weeks beginning June 6th and ending July 27th;
demands would not be met. She was also told, however, that                     (2) an experienced instructional assistant; (3) to ease the
the central office would make the final decision on this                       facilitation of behavior and social skills , 3 or 4 other students
matter. In response to Mrs. Hunt’s concerns about the use of                   will be attending the same program and there will always be
aides, Gina Tello, a special education teacher who prepared                    at least one other student in the classroom; (4) speech and
the 2000-2001 IEP, told her that her 2.5 aide staff was ample                  language therapy and OT will be provided in a collaborative
to provide the one-on-one assistance situations that may arise,                setting, with the time based on the same 3/5 ration as that of
and that peer tutors were to be utilized as well. Mrs. Tello                   IEP goals. On June 1, 2000, the parents received a fax from
adopted the Chileda plan as a basis for the IEP with the                       Chileda questioning the appropriateness of the May 23, 2000
following goals: (1) math skills in the area of money and                      proposal because (1) it provided no formal programming in
time; (2) reading and writing skills in the areas of                           August, thereby jeopardizing his ability to integrate into the
comprehension and letter formation; (3) social skills in the                   local school in the fall; (2) it provided a 3-day a week, instead
areas of interpersonal relations and behavior; and (4) personal                of a 5-day a week, summer session; and (3) a 3 or 4 student-
safety and self-help in the areas of community and toileting.                  setting was insufficient because a 5 to 10 student-setting was
Another ARC meeting was held on May 18, 2000, to discuss                       more beneficial. On August 20, 2000, Jason was discharged
summer programming with parents present. It was agreed                         from Chileda.
that ESY was needed but no decision on how to accomplish
it was reached. Dr. Perkins offered either (1) the possibility                   On January 9, 2001, a due process hearing was requested
of providing a staff member to work with Jason during the                      on Jason’s behalf. The Division of Exceptional Children
summer or (2) programs at Redwood. Jason’s parents were                        Services received the request on January 11, 2001 and
opposed to the Redwood program, insisting that they needed                     assigned Ms. Patricia M. Guthrie as the Hearing Officer on
a program that included behavioral and more academic focus.                    January 25, 2001. The Hearing Officer ruled in favor of the
With respect to OT services, Dr. Perkins discussed a program                   District on all claims, as follows: (1) the District did not deny
at Ft. Wright that would facilitate this. However, the parents                 FAPE to Jason Hunt for the 1996-97 school year and ESY
did not want a part-time program, insisting that only a full-                  services were not required for Jason to receive a FAPE; (2)
time program was consistent with the IEP developed by                          the parents were not entitled to reimbursement for the costs
Chileda. The parents suggested the option of attending                         associated with placement at Bancroft; (3) the District did not
Chileda during the summer at public expense. Dr. Perkins                       deny FAPE to Jason for the 1997-98 school year and ESY
                                                                               services were not required for Jason to receive a FAPE; (4)
                                                                               the District did not deny FAPE to Jason for the 1998-99
   5                                                                           school year and ESY services were not required for Jason to
       Eviden tly, Jason’s parents signed a o ne-year contract for services.
Nos. 02-6027/6028           Kenton County Sch. Dist. v.       13    14       Kenton County Sch. Dist. v.         Nos. 02-6027/6028
                                           Hunt, et al.                      Hunt, et al.

receive a FAPE; (5) the parents were not entitled to                62. The district court affirmed the decision by the Division
reimbursement for the costs associated with placement at            of Exceptional Children. The current appeal followed.
Chileda during the time of March 22, 1999 through the
summer of 1999; (6) there was no denial of FAPE with                                          ANALYSIS
respect to the District’s failure to develop an IEP for the
student for the 1999-2000 school year because Jason was not            On this appeal, the District argues that (1) in failing to
enrolled in the District; (7) the parents were not entitled to      follow the dictates of Sixth Circuit case law for deciding ESY
reimbursement for the costs associated with placement at            issues, the district court made core findings which are clearly
Chileda during the time of March 22, 1999 through the 1999-         erroneous and warrant reversal of the judgment for Plaintiffs;
2000 school year; (8) the District did not deny a FAPE to           (2) in deciding an issue not even properly before the court, the
Jason in the summer of 2000 because it offered an appropriate       district court retroactively applied an IDEA regulation
ESY program that the parents refused; and (9) the parents           governing the contents of a disabled student’s IEP; (3) instead
were not entitled to reimbursement for the costs associated         of deferring to the ECAB opinion, the district court should
with placement at Chileda for the summer of 2000. The               have deferred to the opinion of the due process hearing officer
parents appealed to the Division of Exceptional Children on         on credibility issues; (4) this Court must make its own legal
April 23, 2001, which reversed the decision by the hearing          determination on whether the District provided a FAPE to
officer. Rather than confine its analysis to the issues litigated   Jason without ESY or residential placement.
by Jason’s parents before the hearing officer, the ECAB
concluded that Jason was denied a FAPE for all the years he                            A. Extended School Year
was at White because his IEPs at White were not
individualized to his needs, did not contain measurable goals,         The district court ordered reimbursement of expenses
and did not adequately address his behavior issues. The             related to the behavior modification program at Bancroft from
District appealed the ECAB ruling to the district court. The        April to July of 1997, as well as the Chileda summer school
District requested a hearing under 20 U.S.C.                        programs in 1998 and 2000, because it found that the parents
§ 1415(i)(2)(b)(ii) to address issues which it asserted were        succeeded in proving Jason’s need for ESY services in order
raised for the first time by the ECAB. The district court           to obtain FAPE. The district court also treated the residential
limited the hearing to two hours to be shared equally by the        placement at Chileda from March 1999 through May 2000 as
parties. The District presented the testimony of Mr. Burdge,        an ESY issue, finding credible the parent’s testimony that
Jason’s teacher and State Coordinator for the Kentucky              Chileda would not accept Jason into a summer program
Alternate Portfolio Assessment, to address specifically the         without a one-year contract.6
issues of how the IEPs were prepared and how to interpret             As this Court had noted on an earlier occasion, “the key
them. His testimony was intended to help the court determine        substantive term of ‘free appropriate public education’ in the
whether the IEPs were based on Jason’s individualized needs,
with significant and well-informed input from Mrs. Hunt,
whether they contained measurable and measured goals, and
whether they were being supplemented by behavior plans and               6
                                                                         Since the district court conducted a very short hearing on the
teaching strategies that were not at the time legally required      underlying factual issues and agreed with the ECAB , we review the
to be put into the IEPs. J.A. at 211-22, 228-29, 246-47, 258-       underlying decision by the ECAB for error.
Nos. 02-6027/6028          Kenton County Sch. Dist. v.      15   16   Kenton County Sch. Dist. v.          Nos. 02-6027/6028
                                          Hunt, et al.                Hunt, et al.

Act is defined in ‘general and somewhat imprecise’ terms.”         the individual child, that an ESY is necessary to avoid
Cordrey v. Euckert, 917 F.2d 1460, 1470 (6th Cir. 1990)            something more than adequately recoupable regression.
(citing Bd. of Educ. v. Rowley, 458 U.S. 176, 205 (1982)).         More specifically, it must be shown that an ESY is
According to the Supreme Court, FAPE “consists of access to        necessary to permit the child to benefit from his
specialized instruction and related services which are             instruction. The Third Circuit has persuasively held that
individually designed to provide educational benefit to the        this benefit must be more than merely de minimis,
handicapped child.” Rowley, 458 U.S. at 201. “More                 gauged in relation to the child’s potential.
specifically, an ESY would be appropriate if it would prevent
significant regression of skills or knowledge retained by the    Id. at 1472-73 (citations omitted) (emphasis added).
child so as to seriously affect his progress toward self-
sufficiency.” Cordrey, 917 F.2d at 1470 (citation omitted).        As we noted in Cordrey, “whether the IEP provides a ‘free
After discussing several suggested methods of proof, the         appropriate public education’ is a question subject to review
Cordrey court concluded that                                     de novo, while factual determinations by the district court are
                                                                 accorded deference unless clearly erroneous.” Id. at 1474.
  the regression standard in Rettig and like cases is best       The factual questions in this case are, therefore, Jason’s
  interpreted not to require absolutely that a child             “tendency to regress, prior regression, ability to recoup lost
  demonstrate that he has regressed in the past to the           skills, and progress toward his educational goals.” Id. “The
  serious detriment of his educational progress in order to      legal question is whether these facts meet the standard of
  prove his need for a summer program. Instead, where            significant skill losses of such degree and duration so as
  there is no such empirical data available, need may be         seriously to impede his progress toward his educational
  proven by expert opinion, based upon a professional            goals.” Id.
  individual assessment.
                                                                   With respect to the need for ESY in the 1996-97 school
Cordrey, 917 F.2d at 1472. The Cordrey court continued:          year, the hearing officer concluded that “[t]he weight of the
                                                                 evidence and testimony clearly provides that the school
  Beyond the verbal formulation of a substantive standard        district provided a FAPE to the student, and that ESY was not
  for ESY entitlement, the actual dispute in this case seems     required in order for the student to receive FAPE.” Although
  to center on a more fundamental issue: what is the role of     the hearing officer acknowledged that “evidence does show
  an ESY within a “free appropriate public education”            regression in skills from time to time, and not always
  under the Act? . . . The best rule is that which recognizes    associated with breaks in instruction, the recoupment time
  that the school district has no purely custodial duty to       required was not shown to be excessive or even consistent.”
  provide for handicapped children while similar provision       Pursuant to 34 C.F.R. § 300.510(b), the ECAB conducted an
  is not made for others. We therefore begin with the            impartial review, examined the entire record, and rendered an
  proposition that providing an ESY is the exception and
  not the rule under the regulatory scheme. Given those
  policy considerations, therefore, it is incumbent upon
  those proposing an ESY for inclusion in the child’s IEP
  to demonstrate, in a particularized manner relating to
Nos. 02-6027/6028                Kenton County Sch. Dist. v.              17   18   Kenton County Sch. Dist. v.          Nos. 02-6027/6028
                                                Hunt, et al.                        Hunt, et al.

independent decision upon completion of the review.7 The                       address the appropriateness of the summer program at
ECAB concluded that the District improperly refused to                         Chileda; while it may have been of value to the student, there
provide ESY for Jason for the summer after the 1996-97                         is no evidence that his IEP was not appropriate to the needs
school year because (1) the District required complete                         of the student, or that ESY services were required in order for
mastery of skills before a student would qualify for ESY and                   the student to receive a FAPE.” Once again, the ECAB
(2) the District failed to collect (or, in the alternative, it                 disagreed:
destroyed) raw data on regression and recoupment, in
violation of several Kentucky statutes. We find that the                         The parent’s placement at Chileda for the Summer of
ECAB erred by ignoring the clear mandate we issued in                            1998 was reasonable, given the testimony by LEA [local
Cordrey that it is the proponent of ESY that bears the burden                    educational agency’s] employees that behavioral issues
of proof either through the use of data or the use of expert                     adversely affected the student’s ability to participate in
testimony. Although we agree with the ECAB that the                              his educational program and that his behavior would
District should not be rewarded for not accumulating data,8                      deteriorate without structure. An expert from Bancroft,
we find it significant that the legislature did not deem it                      who had personally assessed and worked with the
necessary to punish this conduct by automatically imposing                       student, testified that in his opinion the student needs
an obligation to provide ESY for every affected student.                         structure all the time. Another expert, a clinical
Jason’s parents could have established the need for ESY                          psychologist who evaluated the student, testified that he
through the use of expert testimony, but, as explained below,                    needs a highly structured, uninterrupted flow of services
they did not. We further note that even if Jason’s parents                       throughout the year and that without such services, the
could have established the need for ESY, the record clearly                      student would inevitably suffer significant regression.
shows that the Bancroft program did not provide services that
would qualify as ESY.                                                          J.A. at 90. The clinical psychologist referred to by the ECAB
                                                                               was Dr. Ebbens and it is his testimony that we now turn to.
  With respect to the need for ESY for the 1997-98 school                      Dr. Ebbens evaluated Jason on February 6, 2001, more than
year, the hearing officer found that “[i]t is not necessary to                 a year after all relevant decisions by the District had been
                                                                               made in this case. Dr. Ebbens was asked on direct
                                                                               examination to explain why in his opinion it was “important
    7                                                                          that services for Jason have no interruption throughout the
      The Third C ircuit interp reted the regu lation to mean that:            year?” Dr. Ebbens answered:
    [A]ppeals panels reviewing the fact findings of hearing officers
    . . . exercise plenary review, except that they should defer to the
    hearing officer’s findings based upon credibility judgments
                                                                                 I’ve worked with developmentally delayed kids and
    unless the non-testimonial, extrinsic evidence in the record                 adults throughout my years even beginning in
    would justify a contrary conclusion or unless the record rea d in            undergraduate training. I’ve consulted with a lot of TBI
    its entirety would compe l a contrary conclusion.                            or traumatic brain injury programs. Almost invariably
Carlisle Area Sch. v. Scott P., 62 F.3d 520 , 529 (3d Cir. 1995 ).               what happens if you don’t provide that constant flow of
    8                                                                            services, that there’s going to be regression and
      If the question of data accumulation becomes important on remand,          significant regression.    The way these kinds of
there is testimony from Mr. Burdge that such data was in fact collected
and provided to the parents. J.A. at 1347 -52. See also J.A. at 222-23.
                                                                                 individuals process information, without that flow not
Nos. 02-6027/6028                Kenton County Sch. Dist. v.            19     20     Kenton County Sch. Dist. v.                 Nos. 02-6027/6028
                                                Hunt, et al.                          Hunt, et al.

  only will there be regression, but there’s going to be a                     “Plaintiff’s parents are seeking an ideal education for their
  considerable amount of time before they can catch up.                        child. Their aspirations are understandable, even admirable.
  Let’s say they leave the program for a few months or the                     But neither they nor any other parents have the right under the
  residential facility or wherever they might be. There is                     law to write a prescription for an ideal education for their
  going to be a considerable amount of time before they                        child and to have the prescription filled at public expense.”
  can get back up to that level where they had been.                           Cordrey, 917 F.2d at 1474 (citation omitted).
  People with traumatic brain injury or severe
  developmental delays, they tend to be very concrete, very                       With respect to FAPE for the 1998-2000 school years, the
  obsessional. If they’re not hooked in on a program, then                     hearing officer found that the record did not “present
  that’s going to affect that whole process or rehabilitation                  evidence, other than parent opinion, that the IEP developed on
  basically.                                                                   September 16, 1998, did not provide FAPE” for Jason. J.A.
                                                                               at 49. The hearing officer noted that “[t]he parents were
J.A. at 181-82. Dr. Ebbens was also asked what his opinion                     active participants in the educational planning for their child.
was “regarding regression for Jason Hunt.” He answered                         They did not like some aspects of the program, but they did
“[m]y opinion would be if you were to take him out of a full-                  not substantiate that the IEP was not reasonably designed to
time, intense comprehensive program, that it is inevitable that                provide benefit.” Id. The hearing officer also found that the
he would regress and quite significantly.” J.A. at 182. We                     “school district had no opportunity, need or obligation to
find this testimony inadequate to meet the high burden that                    develop an IEP for the student for the 1999-2000 school year,
the Cordrey court imposed on those who propose an ESY for                      as he was not enrolled in the district.” J.A. at 51. Finally, the
inclusion in the child’s IEP. In other words, there was no                     hearing officer found that the District did not fail to provide
demonstration, “in a particularized manner relating to the                     adequate FAPE with their IEP for the summer of 2000
individual child, that an ESY is necessary to avoid something                  because an “appropriate ESY program was offered by the
more than adequately recoupable regression.” Cordrey, 917                      District and the parents refused to accept anything less than
F.2d at 1473. Dr. Ebbens could only opine, based on his                        a full-time replication of the Chileda IEP. That is certainly
experience with individuals similar to Jason, that it would                    the right of the parents, but the school district is not obligated
take two months or more for Jason to recoup what he would                      to fund the parent’s chosen placement.” J.A. at 55. Once
lose without ESY. This opinion was not particularized nor                      again, the ECAB disagreed with all aspects of the hearing
did it explain whether two months is or is not an adequately                   officer’s decision. It found that parents felt that they had to
recoupable regression.9 As the Cordrey court noted:                            sign a one-year contract with Chileda in order to receive any

    9
      The district court relied on two other experts to support its finding.   regress over the summer. However, as pointed out above, to obtain ESY,
Gil Damon, a Behavioral Team Leader at the Bancroft Center, testified at       a plaintiff must show that his regression would be greater than that of a
the due process hearing that Jason needed a structured environment year        normal child. The District, on the other hand, presented Mr. Burdge’s
round. J.A. at 1745-46. Sheri Carlson, the Director of Behavior at the         testimony that the general recoupment time for a no rmal,
Chileda Institute, testified that Jason would need between one month and       “unhandicapped” child was eight weeks. J.A. at 1346. Th e eight-week
six weeks to recover from regression suffered during the summer break.         “typical” regression is actually less than Ms. Carlson’s estimate for
J.A. at 1687-88. The opinions of those two experts suffer from the same        Jason’s regression. Plaintiffs offered no reason to discredit that aspect of
infirmity as that of Dr. Ebbers–they merely point out that Jason wou ld        Mr. Burdge’s testimony.
Nos. 02-6027/6028               Kenton County Sch. Dist. v.            21    22     Kenton County Sch. Dist. v.                   Nos. 02-6027/6028
                                               Hunt, et al.                         Hunt, et al.

services for Jason at all. It then noted that it had earlier, J.A.           schools lack the resources to enable every child to achieve his
at 82-6, concluded that the District failed to provide FAPE to               full potential.” Cordrey, 917 F.2d at 1474. The ECAB noted
Jason for any of the years in question.10 It also found that                 a number of issues that were not addressed in the IEPs.11
Chileda was appropriate for Jason. The ECAB continued:                       However, the District’s resources are limited (both in terms
                                                                             of time and money), and it must make a decision on how to
  Having concluded that the IEPs of the [District] were not                  balance all of the conflicting needs of a child such as Jason.
  appropriate and that the placement of the parent was                       The District had decided on a proper course of action with the
  appropriate we must still balance the equities in this case.               input and consent of Jason’s parents. The District thus
  While we acknowledge that the parents were active                          fulfilled its legal obligation to Jason. While Jason’s parents
  participants in the educational process of this child, and
  the mother regularly attended ARC meetings, the parents
  are not educators and cannot be responsible for knowing
  how an IEP or behavior plan should be written and
  implemented. . . . We find that all of these factors, taken                     11
  together, tip the balance in favor of awarding                                     It is also important that although the ECAB identified a number of
                                                                             problems with IEPs preceding the 19 98-20 00 scho ol years, those
  reimbursement to the parents, even for residential                         prob lems, if they existed , had nothing to do with whether or not Jason was
  placement.                                                                 entitled to ESY for school years before 1998. Nor is it of any relevance
                                                                             to whether Jason’s parents were justified in making a placement at
J.A. at 91. We understand the plight of Jason’s parents and                  Chileda in the spring of 1999. The o nly relevant IEPs are those starting
we understand the ECAB’s willingness to extend its                           with the IEP dated September 16, 1998. The ECA B identified the
sympathy to them. We cannot, however, condone an                             following faults with that IEP:
                                                                                  [It] says that the student will improve social competence in the
imposition of a “heavy financial drain upon the public fisc,”                     area of behavior. His short term objective is to improve
Cordrey, 917 F.2d at 1473, in circumstances such as these.                        behavior in the areas of transitions, work completion, behaviors
Jason’s parents have closely supervised his development since                     re mouth, and behaviors re hands. No information whatsoever
his birth; they have sent him to numerous schools; they have                      is given to explain exactly what the student must do in order to
monitored his progress; they discussed all matters pertaining                     show mastery of any of these ob jectives. Daily reports received
                                                                                  from the special education teacher pro vided general com ments
to his education with personnel inside and outside the                            to the parents, such as “go od d ay today” or “W ild today . . .”, but
District; and they even hired an attorney to represent them.                      these do not indicate in any way whether o r not the student is
Although we agree that they are not educators, that fact alone                    progressing toward m astery of the objec tives.
is not dispositive here. Jason’s parents want the best for their             J.A. at 85-6. W e think that the ECAB was requiring too much from the
child. It is a commendable desire. However, we stress that                   District. W e are at a loss to understand how a school district can show a
                                                                             progress towards, for example, behaviors “re hands” beyond what the
“an appropriate education is not synonymous with the best                    District stated in the IEP. J.A. at 1030. M oreover, the White IEP is no
possible education. . .. It is also not education which enables              more opaque than the Chiled a IEP , which, for example, set goals for
a child to achieve his full potential; even the best public                  demonstrating “age-ap propriate social interactio n skills” and “socially
                                                                             app ropriate behaviors in the community.” J.A. at 1137. With respe ct to
                                                                             the IEP for the 1999-2000 school year, the ECAB acknowledged that the
    10
                                                                             IEP contained p rioritized goals b ut still found it deficient. J.A. at 86. W e
     This appears to be the first time that the adequacy of FA PE actually   agree with the hearing officer that since Jason was no t a student at W hite
became an ESY issue.                                                         during that year, his IEP for that yea r is irrelevant.
Nos. 02-6027/6028                 Kenton County Sch. Dist. v.            23     24     Kenton County Sch. Dist. v.                    Nos. 02-6027/6028
                                                 Hunt, et al.                          Hunt, et al.

understandably desire more, they are not entitled to have the                        B. Retroactive Application of an IDEA Regulation
District pay for it.12
                                                                                   It appears that in its decision, the district court applied an
  As explained above, we conclude that the ECAB and the                         incorrect version of the IDEA regulations. The district court
district court erred when they determined that the 1999-2000                    cited a version of the Kentucky Administrative Regulations
IEP was invalid and that Jason did not receive FAPE for the                     that did not become effective until August 14, 2000. That
1999-2000 school year. Accordingly, we conclude that Jason                      date is after all the relevant developments in this case.14 The
may have been offered an adequate FAPE. We also conclude                        parties do not dispute that the district court should have
that once Jason’s parents rejected the District’s offer and took
Jason out of the school for the entire school year, he may not
have been entitled to ESY for the summer of 2000.13                             to the academic programs because Fridays typically were community
                                                                                outings and W ednesdays were swim days. Furthermore, Jason also
                                                                                missed a week while attending camp from August 7 through 11. J.A. at
    12
                                                                                186
        Although we are prima rily concerned with the D istrict’s inability          Second, neither the ECA B nor the district court made any finding as
to present evidence to the district court, we recognize that when the           to whether Jaso n was making reasonable progress with his FAPE in the
district court limited the length of the evidentiary hearing, Plaintiffs, as    relevant years. The ECAB pointed to a lack of records, not surprising
well, were p revented from presenting all the evid ence they may have to        since the issue was not litigated before the hearing officer where the
support their claim. Accordingly, throughout this opinion, we comment           parents were asking for ESY and sought the 1999-200 0 school years as
only on evidence that is in the existing record. No portion of this opinion     required in order to participate in the summer program at Chileda. Both
should be viewed as foreclosing Plaintiffs from prevailing on remand. To        parents testified they were satisfied with Jason=s academic progress at
prevail, however, either they will have to prese nt add itional evidence that   W hite’s Tower but not his behavioral situation. At the hearing before the
would address the concerns that we have expressed in this opinion or the        district court, his teacher for the 1998-99 year testified that after his return
district court must state its reasons for rejecting the testimony of Mr.        to school after his hospitalization at the Franciscan Ho spital, he had o nly
Burdge.                                                                         two occa sions o f vomiting during the remaind er of his time at W hite’s
                                                                                Towe r, a period of several months, that his toileting was handled in much
    13                                                                          the same way as it was at Chileda, using an icon and regular reminders,
        Rather than make legal findings with respect to both FAPE and
ESY, we rem and to the district court for further factual find ings to          and that while there were some accidents, they were few. Testing
supplement the record. We exp ressly note the follo wing deficiencies in        indicated that Jason progressed at about the same rate at Chileda as
the proceedings below.                                                          W hite’s Tower. W hile the Chileda program m ay have been more
     First, the district court fo und that the ESY proposed by the District     effective to improve Jason=s behavioral problems, defendant is not
for the summer of 2000 was inadequate because it was not proposed by            required to provide a residential program.
an ARC. H owever, since Jaso n was not enrolled at White during 1999-                14
2000, there was no ARC to convene. Instead, the program was                             The portion of the regulation relied upon by the district court
constructed by an experienced teacher based on the IEP prepared at              provides:
Chileda and designed for transition to middle school at Turkey Foot in the           In the case of a child whose behavior impedes his or her
school district where Jason would be enrolled in the fall. While Chileda             education or that of others, consider, if appropriate, strategies,
officials stated that the proposed program would not suffice beca use it             including positive behavioral interventions, strategies, and
ended on July 27 while the Chileda program co ntinued until August 17,               supports to address that behavior.
the fall scho ol semester started in August and so there was only a slight      707 K Y . A D M IN . R EGS . 1:320 § 5(2)(a)(2 000 ). The 20 00 version of the
difference in duration of the summer program. Also, while the D istrict’s       regulations is more specific with resp ect to what an IE P sho uld co ntain
proposed program was for only three days a week, Chileda’s report of its        than the earlier version applicable to the years in question here. (Appellee
summer 2000 program indicates that only three days a week were devoted          Br. at 50.)
Nos. 02-6027/6028            Kenton County Sch. Dist. v.       25
                                            Hunt, et al.

applied the pre-2000 regulations. Rather, they dispute
whether the reliance on the new regulations amounted to a
harmless error. Because of our ultimate disposition of this
case, we do not address this problem.
                 C. Deference to the ECAB
  The District argues on appeal that the district court
improperly deferred to the ECAB instead of the hearing
officer. Although it is not germane to our disposition of the
case, we reiterate that federal courts defer to the final decision
of the state authorities, which, in this case, means the decision
of the ECAB. See, e.g., Thomas v. Cincinnati Bd. of Educ.,
918 F.2d 618, 624 (6th Cir. 1990); Burilovich v. Bd. of Educ.
of the Lincoln Consol. Sch., 208 F.3d 560, 567 (6th Cir.
2000).
                       CONCLUSION
  For the reasons stated above, we reverse. Because we have
found that the ECAB committed a number of reversible legal
errors and that the district court relied on the ECAB opinion
without a full evidentiary hearing, we remand to the district
court for a full hearing on the issues raised by the parties. On
remand, the district court should place the burden of
establishing the need for an ESY (during the summers) and a
lack of FAPE (during the regular school year) on plaintiffs.
