Filed: April 28, 2003

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 02-1418

(CA-01-519)

JH, a minor, etc., et al.,

Plaintiffs - Appellants,

versus

Henrico County School Board,

Defendant - Appellee.

O R D E R

The court amends its opinion filed April 21, 2003, as follows:

On the cover sheet, section 3, line 2 -- “Eastern District of

Virginia, at Norfolk” is corrected to read “Eastern District of

Virginia, at Richmond.”

For the Court - By Direction

/s/ Patricia S. Connor 

 Clerk 
PUBLISHED 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

4444444444444444444444444444444444444444444444447

JH, a minor, by and through his

parents and next friends, JD and

SS; JD; SS,

 Plaintiffs-Appellants, No. 02-1418 

 v.

HENRICO COUNTY SCHOOL BOARD,

 Defendant-Appellee.

4444444444444444444444444444444444444444444444448

Appeal from the United States District Court 

for the Eastern District of Virginia, at Richmond. 

Richard L. Williams, Senior District Judge. 

(CA-01-519) 

Argued: January 22, 2003 

Decided: April 21, 2003 

Before WIDENER and GREGORY, Circuit Judges, and 

HAMILTON, Senior Circuit Judge. 

____________________________________________________________

Vacated and remanded by published opinion. Senior Judge Hamilton

wrote the opinion, in which Judge Widener and Judge Gregory joined.

____________________________________________________________

COUNSEL 

ARGUED: William Henry Hurd, Richmond, Virginia, for Appellants. Joseph Thomas Tokarz, II, Assistant County Attorney,

COUNTY OF HENRICO, Richmond, Virginia, for Appellee. ON

BRIEF: Edward M. Wayland, Charlottesville, Virginia, for Appel-
lants. Joseph P. Rapisarda, Jr., County Attorney, COUNTY OF HENRICO, Richmond, Virginia, for Appellee.

____________________________________________________________

OPINION 

HAMILTON, Senior Circuit Judge:

 In this action arising under the Individuals with Disabilities Education Act (the IDEA), 20 U.S.C. §§ 1400 to 1487, JH, a minor child,

and his parents, JD and SS,1

 seek $1,875 from the Henrico County

School Board (the County) as reimbursement for the costs associated

with the provision of speech/language and occupational therapy services to JH during the summer of 2001.2

 The district court granted

summary judgment in favor of the County. JH, JD, and SS (collectively the Plaintiffs) noted this timely appeal.

 For reasons that follow, we vacate the judgment entered by the district court in favor of the County and remand the case to the district

court with instructions that the district court remand the case to the

administrative hearing officer for further proceedings in accordance

with this opinion.

I. 

 In order to put the facts of this case in their proper perspective, we

will first set forth the relevant statutory and regulatory background.

 In general, the IDEA requires all states which receive federal funds

for education to provide each child between the ages of three and

twenty-one, who has a disability, with a free appropriate public education (FAPE). 20 U.S.C. § 1412(a)(1)(A). Congress enacted the

____________________________________________________________

 1 We refer to the child and the child's parents by their initials in order

to protect the identity of the child.

 2 In IDEA parlance, educational services provided to a disabled child

during the summer in a school system where children do not normally

attend school during the summer are called extended school year services

(ESY Services). 34 C.F.R. § 300.309.

2 
IDEA, in part, "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique

needs and prepare them for employment and independent living." 20

U.S.C. § 1400(d)(1)(A). Notably, however, although the IDEA

requires that "[s]tates must provide specialized instruction and related

services sufficient to confer some educational benefit upon the handicapped child," it "does not require the furnishing of every special service necessary to maximize each handicapped child's potential."

Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996, 1001 (4th

Cir. 1997) (internal quotation marks and citations omitted).

 The IDEA requires a school district to provide an appropriate Individual Educational Program (IEP) for each disabled child. MM v.

School Dist. of Greenville Co., 303 F.3d 523, 527 (4th Cir. 2002).

"An appropriate IEP must contain statements concerning a disabled

child's level of functioning, set forth measurable annual achievement

goals, describe the services to be provided, and establish objective

criteria for evaluating the child's progress." Id. Every IEP must be

prepared by an IEP team, which consists of a representative of the

school district, the child's teacher, the child's parents or guardian and,

where appropriate, the child himself. 20 U.S.C. § 1414(d)(1)(B).

 With this statutory and regulatory background in mind, we turn to

the facts of the present case. There is no dispute that JH, who was

born on May 16, 1994, suffers from a high functioning form of autism

which qualifies as a disability under the IDEA. At all times relevant

to this case, JH attended Dumbarton Elementary School, a school

operated by the County.

 In May 1998, the County classified JH as eligible for special education services under the IDEA. During the summer of 2000 (i.e., the

summer immediately preceding JH starting kindergarten), JH received

ESY Services from the County consisting of a total of twelve hours

of speech/language therapy and eight hours of occupational therapy.

 Beginning in the fall of 2000, JH attended kindergarten with nondisabled children in a regular classroom at Dumbarton Elementary

School under an IEP for the 2000-2001 school year (the Kindergarten

3 
IEP).3

 The Kindergarten IEP set twenty-seven goals for JH to master

by the end of his regular kindergarten school year. In order to meet

these goals, the Kindergarten IEP provided JH six hours per day of

one-on-one service by an instructional assistant in addition to two

hours of speech/language therapy per week and two hours of occupational therapy per week.

 Nancy Smith (Smith), a speech/language pathologist with twentyeight years experience, provided JH his speech/language therapy,

while Carolyn Stone (Stone), an occupational therapist with twentysix years experience, provided JH his occupational therapy.4

 Stone

had also provided occupational therapy services to JH during the

1999-2000 school year. During JH's regular kindergarten school year,

Smith and Stone each saw JH at least three times per week and talked

regularly with his classroom teacher, Howard Everette (Everette), and

the instructional assistant assigned to JH.

 At the time, Helen McGrath (McGrath) served as Dumbarton Elementary School's special education teacher. Although McGrath did

not actually teach JH, per the Kindergarten IEP, she did provide

Everette and the instructional assistant assigned to JH with one hour

each week of consulting services regarding JH.

 Various testing at the end of JH's regular kindergarten school year

revealed that he had made substantial progress in some areas, but

remained weak in others. In June 2001, JH took the Henrico County

Assessment Test, scoring 85% in math, 100% in science, 80% in

social studies, and 85% in language arts. Other assessment tests conducted at the end of JH's regular kindergarten school year revealed

that he had mastered three of the twenty-seven goals in the Kindergarten IEP, and had made progress on all but two. JH had mastered the

goals of (1) discriminating between nasal and non-nasal speech with

80% accuracy, (2) marking final consonants with 75% accuracy in

conversation, and (3) using the mouse and keyboard on a computer

consistent with the skill level of his classmates. Of specific relevance

____________________________________________________________

 3 The Kindergarten IEP expired May 5, 2001. The Plaintiffs take no

issue with the Kindergarten IEP.

 4 Both Smith and Stone have worked with autistic children since the

mid-1970s.

4 
in the present appeal, although JH had improved his skills with

respect to using language appropriately in social situations, referred

to as social pragmatics, he remained seriously behind his peers in that

area. The two goals upon which JH had made absolutely no progress

were (1) using contingent statements "(`I like the beach too. I found

shells. We go swimming.')" to maintain conversations for five turns

in four out of five opportunities, and (2) maintaining the same topic

for five turns with no more than one verbal prompt in four out of five

opportunities. (J.A. 707).

 Because the Kindergarten IEP did not provide that JH would

receive ESY Services during the summer of 2001, JD and SS

requested an IEP team meeting in order to request that the County

provide JH with such services. The meeting took place on May 14,

2001. JD and SS took the position that not only should the County

provide JH with ESY Services for the summer of 2001, but that it

should do so at the same level as provided in the Kindergarten IEP.

The County agreed that JH needed ESY Services during the summer

of 2001, but disagreed with JD and SS regarding the appropriate type

and amount of such services. The County endorsed a peer modeling

approach suggested by Smith and Stone in which JH would interact

with his peers in order to improve his social language and fine motor

skills. Based on Smith and Stone's experience with JH during the regular kindergarten school year, they believed that JH had difficulty

generalizing social language skills taught in individual therapy sessions to other settings such as the classroom, playground, and home.

Therefore, rather than focusing on one-on one services, Smith and

Stone believed that JH would best be served by receiving ESY Services focused on improving JH's peer communication skills.

 On June 11, 2001, the County members of the IEP team issued a

final proposed IEP for JH for the summer of 2001 (the Summer 2001

IEP). The Summer 2001 IEP provided that while attending the regular

ten week summer school session at Dumbarton Elementary School,

JH would receive: (1) special education services four hours per day

from July 9 through August 2 and ten hours per week from August

21 through September 1; (2) special education consultation for thirty

minutes per week for the entire summer; (3) assistance from an

instructional assistant twelve hours per week from June 18 through

June 29, sixteen hours per week from July 9 through August 2, and

5 
fifteen hours per week from August 6 through August 18; (4) individual speech/language therapy conducted in four thirty-minute sessions

over the course of the summer; and (5) individual occupational therapy conducted in five thirty-minute sessions over the course of the

summer.

 JD and SS objected to the Summer 2001 IEP on the ground that it

provided JH inadequate amounts of individual speech/language and

occupational therapy. JD and SS wanted such therapies to continue at

the same level as provided in the Kindergarten IEP. Under the Kindergarten IEP, JH had received two hours of individual

speech/language therapy per week and two hours of individual occupational therapy per week.

 Following an unsuccessful attempt at mediation, a due process

hearing before an administrative hearing officer (the Hearing Officer)

was held on July 30, 2001. Meanwhile, at the Plaintiffs' expense, JH

received private speech/language and occupational therapy during the

Summer of 2001 at the same level as provided in the Kindergarten

IEP.

 Before the Hearing Officer, the County contended that the only

purpose of ESY Services is to maintain the progress that a disabled

child had already made during the regular school year. The County

also contended that the services provided in the Summer 2001 IEP

would meet this goal and offered expert testimony and other evidence

in support of this contention.

 The Plaintiffs, in contrast, contended that in addition to maintaining the progress that a disabled child had already made during the regular school year, ESY Services should also be provided in order to

help a disabled child master goals in the IEP for the regular school

year that had gone unmet. The Plaintiffs also maintained that, in the

case of autistic children, the maximum amount of ESY Services

should be provided in order to take advantage of the limited "window

of opportunity" for when such children are most able to effectively

overcome deficits due to autism. In this regard, the Plaintiffs relied on

the expert testimony before the Hearing Officer of Dr. Ronald David,

M.D. (Dr. David), an associate clinical professor of pediatrics at the

Medical College of Virginia. According to Dr. David, JH has a win6 
dow of opportunity for when he can most effectively learn to overcome his deficits due to autism, which window will close at age eight

or nine. In the opinion of Dr. David, after age eight or nine, JH will

have a far more difficult time learning the skills that he needs to function in life.

 The Plaintiffs also relied on the expert testimony before the Hearing Officer of Dr. Donald Oswald, Ph.D. (Dr. Oswald), a licensed

clinical psychologist who works exclusively with autistic children and

adults. According to Dr. Oswald, using the summer months merely to

maintain the speech/language and sensory motor skills that an autistic

child has already gained as opposed to using such time to actively foster continued development of such skills, will limit the child's ability

to participate and benefit from a regular classroom setting and limit

the extent to which he will be able to compensate for the functional

limitations of autism.

 The Hearing Officer issued his decision on August 7, 2001. Based

upon all of the evidence before him, the Hearing Officer found that

"JH needs the ESY with the same level of instruction in

speech/language and OT that he received in kindergarten which is two

hours of each, each week (four hours total) . . . ." (J.A. 528). The

Hearing Officer agreed with the Plaintiffs that just maintaining the

skills that JH had learned in kindergarten was not appropriate in light

of JH's disability which left him with only a one or two year window

of opportunity before his learning patterns changed. According to the

Hearing Officer, the purpose of ESY Services is to make "reasonable

progress" on unmet goals rather than simply maintaining gains

already made. Id. However, the Hearing Officer rejected the Plaintiffs' position that the purpose of ESY Services is to master unmet

goals of the IEP for the regular school year. As relief, the Hearing

Officer ordered that the Summer 2001 IEP be amended to provide JH

with two hours of speech/language therapy per week and two hours

of occupational therapy per week. Finally, the Hearing Officer

ordered that the stated goal of the Summer 2001 IEP "should be

amended from `maintaining' to `making reasonable progress.'" (J.A.

529). The Hearing Officer did not address the issue of reimbursement

for the expenses that JD and SS had already incurred in providing private speech/language and occupational therapy to JH during the Summer of 2001 at the same level as the Kindergarten IEP.

7 
 On August 13, 2001, the Plaintiffs filed the present action pursuant

to 20 U.S.C. § 1415(i), seeking review of the Hearing Officer's decision. The Plaintiffs claimed that the Hearing Officer erred in failing

to order that they be reimbursed for the speech/language therapy and

occupational therapy services that JH received during the summer of

2001 at the same level as the Kindergarten IEP. The Plaintiffs also

alleged that the Hearing Officer erred by refusing to order that the

Summer 2001 IEP state as its overall goal that JH master goals unmet

under the Kindergarten IEP. The County filed an answer and counterclaim, which counterclaim sought to reverse the Hearing Officer's

decision regarding the level of speech/language and occupational

therapy services.

 The parties filed cross-motions for summary judgment. The district

court granted summary judgment for the County on the County's

counterclaim, holding that: (1) the Summer 2001 IEP was reasonably

calculated to provide JH with educational benefit, and (2) the proper

goal for the Summer 2001 IEP was to make reasonable progress on,

rather than master, the stated goals.

 The Plaintiffs noted the present appeal. Significantly, on September

6, 2002, just three weeks after the completion of the briefing schedule

in this case, we issued MM v. School District of Greenville County,

303 F.3d 523 (4th Cir. 2002). In MM, we first announced a formal

standard for determining when ESY Services are appropriate under

the IDEA: "ESY Services are only necessary to a FAPE when the

benefits a disabled child gains during a regular school year will be

significantly jeopardized if he is not provided with an educational

program during the summer months." Id. at 538. In MM, we carefully

emphasized that, under this standard, "the mere fact of likely regression is not a sufficient basis, because all students, disabled or not,

may regress to some extent during lengthy breaks from school." Id.

 Prior to oral argument, we granted the parties leave to address, in

writing, the impact of MM on the issues in the present appeal. We

have that additional briefing before us for consideration.

II. 

 In MM, we set forth our standard of review with respect to a district

court's decision to grant a motion for summary judgment in an IDEA

case:

8 
 In a judicial proceeding under the IDEA, a reviewing

court is obliged to conduct a modified de novo review, giving "due weight" to the underlying administrative proceedings. In such a situation, findings of fact made in

administrative proceedings are considered to be prima facie

correct, and if a reviewing court fails to adhere to them, it

is obliged to explain why. The court is not, however, to substitute [its] own notions of sound educational policy for

those of local school authorities. . . .

 Whether a district court has accorded the proper "due

weight" to the administrative proceedings is a question of

law—or at least a mixed question of law and fact—to be

reviewed de novo by an appellate court. In our review, we

need not defer to factual recitations made by a district court

from the administrative record, because that court stands in

no better position than do we in reviewing the record. In

conducting our review in an IDEA proceeding, we therefore

must examine the entire record, and we must afford "due

weight" to the administrative determinations, applying the

standard of review utilized by the district court. However,

where a district court has heard and considered additional

evidence, . . . we review its findings of fact for clear error.

Id. at 530-31 (some internal quotation marks omitted) (citations omitted) (alteration in original). We further reiterated in MM that "[t]he

courts should, to the extent possible, defer to the considered rulings

of the administrative officers, who also must give appropriate deference to the decisions of professional educators." Id. at 533.

III. 

 The Plaintiffs primarily challenge the district court's grant of summary judgment in favor of the County on the basis that the district

court erred by not giving appropriate deference to the Hearing Officer's findings. Relatedly, the Plaintiffs argue that the "reasonable

progress" standard used by the Hearing Officer and the district court

required that JH receive the same level of speech/language and occupational therapy services during the summer of 2001 as he had

received under the Kindergarten IEP.

9 
 The County essentially takes the position that this case must be

analyzed under the MM standard for ESY Services, and under such

standard, the evidence shows that the Summer 2001 IEP provided JH

a FAPE.

 Prior to our decision in MM, the Fourth Circuit had not developed

a standard for determining when ESY Services are appropriate under

the IDEA. Id. at 537. Following MM, Fourth Circuit precedent is clear

that "ESY Services are only necessary to a FAPE when the benefits

a disabled child gains during a regular school year will be significantly jeopardized if he is not provided with an educational program

during the summer months." Id. at 538.

 The Hearing Officer addressed the Plaintiffs' challenge to the Summer 2001 IEP under a standard more favorable to the Plaintiffs than

the standard provided in MM. The Hearing Officer assessed the adequacy of the Summer 2001 IEP by considering whether the level of

services provided in the Summer 2001 IEP would allow JH to make

reasonable progress on the skills targeted by such IEP. He ultimately

determined that it would not, and decided that in order for JH to make

reasonable progress on the skills targeted in the Summer 2001 IEP,

JH would need to receive speech/language and occupational therapy

services at the same level as provided in the Kindergarten IEP.

Indeed, the Hearing Officer ordered the stated goal of the Summer

2001 IEP "amended from `maintaining' to `making reasonable progress.'" (J.A. 529). The district court agreed with the Hearing Officer's

use of the "reasonable progress" standard, but disagreed with his

weighing of the evidence presented at the due process hearing. (J.A.

528).

 The goal of a disabled child making reasonable progress during the

summer months on unmastered skills is obviously a higher goal than

simply preventing the skills and benefits the same child has already

gained from the regular school year from being significantly jeopardized. Given the fact that neither the Hearing Officer nor the district

court had the benefit of our announcement in MM of the formal standard in our circuit for determining when and at what level ESY Services are necessary to a FAPE, their use of a different standard is

understandable. Nevertheless, the situation presently leaves us with an

appellate record that is inadequate for effective appellate review.

10 
Most notably, the record does not contain a finding by the Hearing

Officer regarding the appropriateness of the Summer 2001 IEP under

the MM standard for ESY Services. In other words, the record does

not contain a finding regarding whether the level of services provided

in the Summer 2001 IEP was adequate to prevent the gains that JH

had made during his regular kindergarten school year from being significantly jeopardized.5

 Despite the lack of such a finding, we observe that the record

indeed does contain conflicting evidence regarding whether the level

of services provided in the Summer 2001 IEP was adequate to prevent

the gains that JH made during his regular kindergarten school year

from being significantly jeopardized. For example, in support of the

Plaintiffs, the record contains the testimony of Dr. Oswald that

"[r]educing the frequency of related services represents a significant

change and a threat to the progress that JH and his teachers have

worked so hard to achieve." (J.A. 834). Also in support of the Plaintiffs, the record contains the testimony of JH's private occupational

therapist since March 1999, Geri Allen, that JH needs to continue two

____________________________________________________________

 5 The Plaintiffs argue that this case must be decided under the reasonable progress standard used by the Hearing Officer and the district court

because the County did not file a cross appeal challenging such use as

erroneous. The Plaintiffs' argument is without merit. "[T]he general rule

is that without taking a cross-appeal, the prevailing party may present

any argument that supports the judgment in its favor as long as the

acceptance of the argument would not lead to a reversal or modification

of the judgment rather than an affirmance." Bell Atlantic Network Servs.,

Inc. v. Covad Communications Group, Inc., 262 F.3d 1258, 1278 (Fed.

Cir. 2001) (internal quotation marks omitted). Accord El Paso Natural

Gas Co. v. Neztsosie, 526 U.S. 473, 478-79 (1999) ("Absent a crossappeal, an appellee may `urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the

reasoning of the lower court,' but may not `attack the decree with a view

either to enlarging his own rights thereunder or of lessening the rights of

his adversary.'") (quoting United States v. American Ry. Express Co.,

265 U.S. 425, 435 (1924)). Here, the County does not seek to modify the

judgment in any way. Indeed, the County does no more than defend the

judgment of the district court. Thus, no cross appeal by the County was

necessary in order for the County to challenge the reasonable progress

standard as incorrect.

11 
hours of occupational therapy per week "so as not to regress . . . ."

(J.A. 160).

 We also observe that, with respect to JH, the record contains a

questionnaire, completed by McGrath, entitled "CONSIDERATION

FOR EXTENDED SCHOOL YEAR (ESY) Henrico County Public

Schools." (J.A. 998). The questionnaire expressly states:

Extended school year (ESY) is designed to provide a free

appropriate public education to children with disabilities

who experience significant regression of critical life skills

because of an interruption in the instructional program. The

information you provide below will assist in determining

whether the above named student qualifies for ESY.

(J.A. 998). Of relevance to the MM standard for ESY Services, the

form asks "[w]hat previous interruption in the educational program

has caused a permanent, irreparable or major loss in this student's

ability to perform?" (J.A. 999). McGrath answered: "Christmas -

Thanksgiving - after illness. [JH] has great difficulty reorienting to

the school environment, structure, and social settings." The questionnaire also asks: "What permanent, irreparable or major loss of critical

life skills will occur as a result of interruption of this student's education?" McGrath answered: "Emerging communication, social, behavioral (sensory) skills, cognitive skills[, and] fine motor skills" (J.A.

999).

 In support of the County's position that the Summer 2001 IEP met

the MM standard for ESY Services, the County relies upon the testimony and reports of Smith and Stone. The Hearing Officer qualified

both Smith and Stone as expert witnesses, and both testified from

extensive personal knowledge of JH's specific educational performance. According to Smith, the Summer 2001 IEP provided JH a

FAPE given that JH had reached parity with his peers in the areas of

expressive language, receptive language, and articulation and that his

remaining deficit area was social pragmatics. She further testified that

the literature in the field indicates that social pragmatics should be

taught in a natural setting, not one-on-one with a therapist. Therefore,

Smith testified: "After working with [JH] this past year[,] . . . I think

we would meet his needs better working in an integrated model in the

12 
classroom setting or in small groups, so that he would have the opportunity to be able to interact with his peers." (J.A. 369). Stone concurred in this recommendation and testified that JH works best in the

classroom "which is the natural setting for him," that he needs to practice and reinforce what he has been taught in all settings, and that he

does not need a therapist with him while he does so. (J.A. 418). Specifically, with respect to the issue of regression, Smith testified that

JH did not regress over school breaks. In fact, Smith directly disputed

McGrath's opinion that JH's degree of progress on critical life skills

would be affected if he did not receive ESY Services during the summer of 2001.

 Because the record does not contain findings by the Hearing Officer with respect to whether the level of speech/language and occupational therapy services provided in the Summer 2001 IEP was

adequate to prevent the gains that JH had made in these areas during

his regular kindergarten school year from being significantly jeopardized, we are presently unable to conduct meaningful appellate

review of the district court's judgment. Accordingly, we vacate that

judgment and remand with instructions that the district court further

remand the case to the Hearing Officer for reconsideration under the

MM standard. We direct that upon such reconsideration, the Hearing

Officer shall consider the "window of opportunity" evidence presented by the Plaintiffs to the extent that it is relevant to the question

of whether the level of services provided in the Summer 2001 IEP

was adequate to prevent the gains that JH had made during his regular

kindergarten school year from being significantly jeopardized. We

also direct that, prior to any decision being issued by the Hearing

Officer, the parties be allowed to present oral and written argument

before the Hearing Officer regarding the evidence in the record in

support of their respective positions.

VACATED AND REMANDED 

13