Kenton County School District v. JEFFREY HUNT and LYNN HUNT

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0302P (6th Cir.)
File Name: 04a0302p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KENTON COUNTY SCHOOL
DISTRICT,
Plaintiff-Appellant,
v.
JEFFREY HUNT and LYNN
HUNT,
Defendants-Appellees.
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Nos. 02-6027/6028
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
Nos. 01-00138; 01-00139—William O. Bertelsman,
District Judge.
Argued: March 18, 2004
Decided and Filed: September 9, 2004
Before: KENNEDY, ROGERS, and COOK, Circuit
Judges.
2 Kenton County Sch. Dist. v.
Hunt, et al.
Nos. 02-6027/6028
_________________
COUNSEL
ARGUED: Richard G. Meyer, DETERS, BENZINGER &
LAVELLE, Covington, Kentucky, for Appellant. Randy J.
Blankenship, ROBBINS, KELLY, PATTERSON &
TUCKER, Cincinnati, Ohio, for Appellees. ON BRIEF:
Richard G. Meyer, DETERS, BENZINGER & LAVELLE,
Covington, Kentucky, for Appellant. Randy J. Blankenship,
ROBBINS, KELLY, PATTERSON & TUCKER, Cincinnati,
Ohio, for Appellees.
_________________
OPINION
_________________
KENNEDY, Circuit Judge. In this Individuals with
Disabilities Education Act (“IDEA”) case, Plaintiff Kenton
School District (“District”) appeals the order from the district
court that upheld the decision by the Kentucky Exceptional
Children Appeals Board (“ECAB”) requiring the District to
reimburse Jason Hunt’s parents for expenses relating to (1)
his summer placement at two different programs in 1997 and
1998; and (2) his year-long placement at Chileda
Rehabilitation Institute during 1999-2000. The district court
agreed with the ECAB that the District failed to provide Jason
Hunt with a free appropriate public education (“FAPE”)
during all years in question and that the reimbursement was,
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”)

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

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

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

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parents and, it appears for the first time, their attorney was
present. There was no discussion of ESY because of the
placement issues. Jason’s parents expressed their intent to
place Jason in a residential facility upon his release from the
hospital at public expense. The following were their reasons
for residential placement: (1) concern that there was a general
delay in behavioral skills affecting his academic performance
as compared to summer residential program at Chileda; (2)
residential placement allows for development of adaptive
behaviors with peers which is not being done effectively at
White; (3) concern that other more serious maladaptive
behaviors might develop if Jason returned to the present
program at White; (4) the White placement does not include
a full-time certified staff member through the IEP to work
one-on-one with the student in an integrated setting.
On March 8, 1999, Mr. Hunt sent a letter to Dr. Perkins,
notifying him that Chileda would have an opening for his son
on March 19, 1999 and further expressing his dissatisfaction
with the White program because “Jason is not receiving an
appropriate free education in which his special needs are met.
As you are aware his IEP goals are not being met and his
current placement has resulted in maladaptive behavior. We
are very unhappy in the current placement, which has Jason
in a room with an aide (non-certified staff member).” On
March 16, 1999, Mr. Hunt sent another letter to Dr. Perkins
requesting copies of Jason’s records to facilitate his
enrollment at Chileda. Additionally, Mr. Hunt requested
“Kenton County’s written position on paying the
proportionate amount of state and federal funds received by
Kenton County to assist in the placement at Chileda in
accordance with the [IDEA] for education at the Chileda
Institute.” Mr. Hunt also informed Mr. Perkins that the
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
10 Kenton County Sch. Dist. v.
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Nos. 02-6027/6028
would be a small group setting in which he has performed
exceptionally well during two summer private placements; (3)
that when the option of least restrictive environment was
discussed at the March, 1998 ARC meeting, the parents were
told that Kenton County did not have, nor have access to,
such a facility, making this option wholly unavailable; and (4)
that Kenton County had refused “to provide or assist in
payment for an extended school year from 1995 to 1998 on
the unsubstantiated premise that there was no apparent
decline in academic performance and behavior, while we and
some of his educators have observed a substantial increase
after Jason’s return to the Kenton County school system from
two private placements during the summers of 1997 and
1998.”
On March 18, 1999, Dr. Perkins responded, in a letter, to
Mr. Hunt’s accusations. Dr. Perkins expressed the opinion
that Kenton County had both the ability and the desire to
provide Jason with an appropriate education. He indicated
that the White staff cared about Jason and worked very
diligently to provide one of the finest Special Education
programs in the District. He also thought that, with respect to
outside placement, the White program was appropriate for
Jason but that they, nevertheless, recommended that Jason’s
parents seek assistance from several agencies, including
IMPACT and Comprehensive Care to better meet Jason’s
needs. Dr. Perkins concluded: “My information is that you
have chosen not to use these resources, but chose to pursue
residential placement of your own. I fully realize that you
want to provide Jason with the best experiences and support
that you can. However, the Kenton County Schools will not
provide financial support for a private program chosen by a
parent outside of the school setting.”

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

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

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

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

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9The district court relied on two other experts to support its finding.
Gil Damon, a Behavioral Team Leader at the Bancroft Center, testified at
the due process hearing that Jason needed a structured environment year
round. J.A. at 1745-46. Sheri Carlson, the Director of Behavior at the
Chileda Institute, testified that Jason would need between one month and
six weeks to recover from regression suffered during the summer break.
J.A. at 1687-88. The opinions of those two experts suffer from the same
infirmity as that of Dr. Ebbers–they merely point out that Jason would
only will there be regression, but there’s going to be a
considerable amount of time before they can catch up.
Let’s say they leave the program for a few months or the
residential facility or wherever they might be. There is
going to be a considerable amount of time before they
can get back up to that level where they had been.
People with traumatic brain injury or severe
developmental delays, they tend to be very concrete, very
obsessional. If they’re not hooked in on a program, then
that’s going to affect that whole process or rehabilitation
basically.
J.A. at 181-82. Dr. Ebbens was also asked what his opinion
was “regarding regression for Jason Hunt.” He answered
“[m]y opinion would be if you were to take him out of a full-
time, intense comprehensive program, that it is inevitable that
he would regress and quite significantly.” J.A. at 182. We
find this testimony inadequate to meet the high burden that
the Cordrey court imposed on those who propose an ESY for
inclusion in the child’s IEP. In other words, there was no
demonstration, “in a particularized manner relating to the
individual child, that an ESY is necessary to avoid something
more than adequately recoupable regression.” Cordrey, 917
F.2d at 1473. Dr. Ebbens could only opine, based on his
experience with individuals similar to Jason, that it would
take two months or more for Jason to recoup what he would
lose without ESY. This opinion was not particularized nor
did it explain whether two months is or is not an adequately
recoupable regression.9 As the Cordrey court noted:
20 Kenton County Sch. Dist. v.
Hunt, et al.
Nos. 02-6027/6028
regress over the summer. However, as pointed out above, to obtain ESY,
a plaintiff must show that his regression would be greater than that of a
normal child. The District, on the other hand, presented Mr. Burdge’s
testimony that the general recoupment time for a no rmal,
“unhandicapped” child was eight weeks. J.A. at 1346. Th e eight-week
“typical” regression is actually less than Ms. Carlson’s estimate for
Jason’s regression. Plaintiffs offered no reason to discredit that aspect of
Mr. Burdge’s testimony.
“Plaintiff’s parents are seeking an ideal education for their
child. Their aspirations are understandable, even admirable.
But neither they nor any other parents have the right under the
law to write a prescription for an ideal education for their
child and to have the prescription filled at public expense.”
Cordrey, 917 F.2d at 1474 (citation omitted).
With respect to FAPE for the 1998-2000 school years, the
hearing officer found that the record did not “present
evidence, other than parent opinion, that the IEP developed on
September 16, 1998, did not provide FAPE” for Jason. J.A.
at 49. The hearing officer noted that “[t]he parents were
active participants in the educational planning for their child.
They did not like some aspects of the program, but they did
not substantiate that the IEP was not reasonably designed to
provide benefit.” Id. The hearing officer also found that the
“school district had no opportunity, need or obligation to
develop an IEP for the student for the 1999-2000 school year,
as he was not enrolled in the district.” J.A. at 51. Finally, the
hearing officer found that the District did not fail to provide
adequate FAPE with their IEP for the summer of 2000
because an “appropriate ESY program was offered by the
District and the parents refused to accept anything less than
a full-time replication of the Chileda IEP. That is certainly
the right of the parents, but the school district is not obligated
to fund the parent’s chosen placement.” J.A. at 55. Once
again, the ECAB disagreed with all aspects of the hearing
officer’s decision. It found that parents felt that they had to
sign a one-year contract with Chileda in order to receive any

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10This appears to be the first time that the adequacy of FA PE actually
became an ESY issue.
services for Jason at all. It then noted that it had earlier, J.A.
at 82-6, concluded that the District failed to provide FAPE to
Jason for any of the years in question.10 It also found that
Chileda was appropriate for Jason. The ECAB continued:
Having concluded that the IEPs of the [District] were not
appropriate and that the placement of the parent was
appropriate we must still balance the equities in this case.
While we acknowledge that the parents were active
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
together, tip the balance in favor of awarding
reimbursement to the parents, even for residential
placement.
J.A. at 91. We understand the plight of Jason’s parents and
we understand the ECAB’s willingness to extend its
sympathy to them. We cannot, however, condone an
imposition of a “heavy financial drain upon the public fisc,”
Cordrey, 917 F.2d at 1473, in circumstances such as these.
Jason’s parents have closely supervised his development since
his birth; they have sent him to numerous schools; they have
monitored his progress; they discussed all matters pertaining
to his education with personnel inside and outside the
District; and they even hired an attorney to represent them.
Although we agree that they are not educators, that fact alone
is not dispositive here. Jason’s parents want the best for their
child. It is a commendable desire. However, we stress that
“an appropriate education is not synonymous with the best
possible education. . .. It is also not education which enables
a child to achieve his full potential; even the best public
22 Kenton County Sch. Dist. v.
Hunt, et al.
Nos. 02-6027/6028
11It is also important that although the ECAB identified a number of
problems with IEPs preceding the 19 98-20 00 scho ol years, those
problems, if they existed , had nothing to do with whether or not Jason was
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
Chileda in the spring of 1999. The o nly relevant IEPs are those starting
with the IEP dated September 16, 1998. The ECA B identified the
following faults with that IEP:
[It] says that the student will improve social competence in the
area of behavior. His short term objective is to improve
behavior in the areas of transitions, work completion, behaviors
re mouth, and behaviors re hands. No information whatsoever
is given to explain exactly what the student must do in order to
show mastery of any of these ob jectives. Daily reports received
from the special education teacher pro vided general com ments
to the parents, such as “go od d ay today” or “W ild today . . .”, but
these do not indicate in any way whether o r not the student is
progressing toward m astery of the objectives.
J.A. at 85-6. W e think that the ECAB was requiring too much from the
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
District stated in the IEP. J.A. at 1030. M oreover, the White IEP is no
more opaque than the Chiled a IEP , which, for example, set goals for
demonstrating “age-ap propriate social interaction 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
IEP contained p rioritized goals b ut still found it deficient. J.A. at 86. W e
agree with the hearing officer that since Jason was no t a student at W hite
during that year, his IEP for that yea r is irrelevant.
schools lack the resources to enable every child to achieve his
full potential.” Cordrey, 917 F.2d at 1474. The ECAB noted
a number of issues that were not addressed in the IEPs.11
However, the District’s resources are limited (both in terms
of time and money), and it must make a decision on how to
balance all of the conflicting needs of a child such as Jason.
The District had decided on a proper course of action with the
input and consent of Jason’s parents. The District thus
fulfilled its legal obligation to Jason. While Jason’s parents

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

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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.

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