Filed: Aug. 18, 2004
Latest Update: Apr. 11, 2017
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-18-2004 Bucks Cty Dept v. Comm PA Dept Welfare Precedential or Non-Precedential: Precedential Docket No. 02-3919 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Bucks Cty Dept v. Comm PA Dept Welfare" (2004). 2004 Decisions. Paper 369. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/369 This decision is brought to you for free and op
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-18-2004 Bucks Cty Dept v. Comm PA Dept Welfare Precedential or Non-Precedential: Precedential Docket No. 02-3919 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Bucks Cty Dept v. Comm PA Dept Welfare" (2004). 2004 Decisions. Paper 369. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/369 This decision is brought to you for free and ope..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-18-2004
Bucks Cty Dept v. Comm PA Dept Welfare
Precedential or Non-Precedential: Precedential
Docket No. 02-3919
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
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"Bucks Cty Dept v. Comm PA Dept Welfare" (2004). 2004 Decisions. Paper 369.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/369
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PRECEDENTIAL Robert O. Baldi, Esquire (Argued)
UNITED STATES COURT OF 123 West Bridge Street
APPEALS New Hope, PA 18938
FOR THE THIRD CIRCUIT
_______________ Counsel for Appellant
No: 02-3919 Doris M. Leisch, Esquire (Argued)
Commonwealth of Pennsylvania
Department of Public Welfare, Room 302
BUCKS COUNTY DEPARTMENT OF 1400 Spring Garden Street
MENTAL State Office Building
HEALTH/MENTAL RETARDATION, Philadelphia, PA 19130
Appellant Daniel M. Fellin, Esquire
Commonwealth of Pennsylvania
v. Office of Legal Counsel
Department of Public W elfare,
3 rd Floor West
COMMONWEALTH OF Health & Welfare Building
PENNSYLVANIA, 7 th & Forster Streets
DEPARTMENT OF PUBLIC Harrisburg, PA 17120
WELFARE;
BARBARA DEMORA Amicus-Comm. Of PA
_______________
Appeal from the United States District Gary S. Mayerson, Esquire (Argued)
Court Mayerson & Associates
for the Eastern District of Pennsylvania 250 West 57 th Street, Suite 624
(D.C. Civil Action No. 01-cv-03254 ) New York, NY 10107
District Judge: Berle M. Schiller
_______________ Counsel for Appellees
Argued October 15, 2003 OPINION OF THE COURT
Before: SLOVITER, ROTH and
STAPLETON, Circuit Judges
ROTH, Circuit Judge:
(Opinion filed August 18, 2004)
This case arises under the
1
Individuals with Disabilities in Education reimbursing the parent for her time spent
Act, 20 U.S.C. § 1400, et seq (1998) in providing therapy is “appropriate”
(IDEA). The defendant, Bucks County relief.
Department of Mental Health and Mental
I. FACTUAL BACKGROUND
Retardation (Bucks County), appeals the
District Court’s grant of summary Barbara de Mora’s daughter, I.D.1 ,
judgment in favor of Barbara de Mora, the was diagn osed with pervasiv e
plaintiff. The District Court affirmed the developmental delay, cerebral palsy, and
Hearing Officer’s award, reimbursing de deafness. Because I.D. has developmental
Mora for the time she spent working with delays, she was eligible for early
her disabled daughter after Bucks County intervention services under Part C of
refused to provide the specific therapy de IDEA. Under IDEA, the Office of Mental
Mora requested as part of her daughter’s Re tardation of the Pe nnsylv a n ia
therapy program. Department of Welfare administers the
Pennsylvania Early Intervention Program
Because the review process is a
for infants and toddlers from birth up to
long one and children are eligible for
age three. Bucks County is the local
services under Part C of IDEA only up to
mental health and mental retardation office
the age of three, parents face difficult
responsible for coordinating services for
issues when a state denies services,
I.D.
including the interim provision of services
for the child and the fina ncial De Mora and Bucks County worked
responsibility for those services. The issue together to develop an individualized
we are called upon to resolve is whether family service plan (IFSP) for I.D. The
paying de Mora for the time she personally IFSP outlined goals and objectives for I.D.
spent working with her daughter after as well as services that I.D. needed to
Bucks County refused to provide services receive in order to obtain the stated goals
is “appropriate” relief under 20 U.S.C. § and objectives. The IFSP was modified
1439(a)(1). several times after it was first developed
on July 1, 1999, and ultimately provided
We will affirm the District Court.
I.D. with 24.25 hours each week of
After taking into account “equitable
physical therapy, speech therapy,
considerations,” School Committee of the
occupational therapy, and special
Town of Burlington, Massachusetts v.
instruction.
Department of Education of
Massachusetts, 471 U.S. 359, 374 (1985), De Mora grew dissatisfied with
we hold that under the particular I.D.’s program because she did not feel
circumstances of this case, where a trained
service provider was not available and the
parent stepped in to learn and perform the 1
The parties agreed to refer to de
duties of a trained service provider,
Mora’s daughter as I.D.
2
I.D. was benefitting from it. In September I.D. De Mora spent many hours working
1999, de Mora requested that I.D.’s IFSP with I.D. as a Lovaas therapist without
be amended to provide for additional hours Laudon’s presence. When de Mora was
of therapy. She also indicated to Bucks deposed, she gave specific examples of
County a preference for the Lovaas training exercises she executed when
methodology of early intervention training training I.D. I.D.’s therapists provided
and asked Bucks County to hire Patricia affidavits confirming that de Mora was
Laudon, a Lovaas-trained therapist, to acting as a Lovaas therapist, not as a
provide the Lovaas training.2 Bucks mother, when she was working with I.D.
County refused to provide more hours of
II. PROCEDURAL HISTORY
therapy and also refused to provide a
Lovaas training program for I.D. Because After Bucks County refused to
de Mora was convinced that the Lovaas amend the IFSP to provide I.D. with more
training would benefit I.D., she hired, hours of therapy and Lovaas training, de
without Bucks County’s support, Laudon, Mora requested a due process hearing.
who in turn provided in-home therapy to The Hearing Officer noted that de Mora
I.D. from October 8, 1999, through April believed that I.D. had showed immediate
10, 2000. improvement with the initiation of the
Lovaas training, but concluded that the
Because Laudon was not able to
existing IFSP was “appropriate” under 34
spend as many hours with I.D. as I.D.
C.F.R § 303.344, and therefore I.D. w as
needed and because de Mora was unable to
not entitled to any more hours of therapy
find another person trained in Lovaas
or additional hours for Lovaas training:
methodology, Laudon trained de Mora so
that de Mora would be able to provide the The County presented
Lovaas therapy to I.D. Laudon held one- evidence that I.D. made
on-one workshops where de M ora would progress from services
act as the Lovaas therapist as Laudon provided in her IFSP before
coached her. De Mora read and learned and along with Lovaas. It is
discrete trial training teaching guidelines understandable that the
and other books on the Lovaas parents would ask for what
methodology. Lisa Parker, the Early they may consider as the
Intervention Coordinator at Bucks County, best progra m an d/or
testified at the due process hearing that, in methodology. It may be
her opinion, de M ora was qualified to train argued that I.D.’s progress
under the County services
was not good enough when
2
Lovaas training is a type of compared to or in
discrete trial training where lesson conjunction with another.
formats and behavioral reinforcements The County, however, does
are used to teach specific skills.
3
not have the mandate to training. Id. Bucks County did not appeal
provide the best. the Commonwealth Court’s decision.
December 31, 1999 Decision of Hearing On remand from the
Officer at A41. Commonwealth Court of Pennsylvania, the
Hearing Officer ordered Bucks County to
De Mora appealed the Hearing
reimburse de Mora $3,520 for expenses
Officer’s decision to the Commonwealth
she incurred in paying Laudon and $6,842
Court of Pennsylvania. The court noted
for the time she personally spent providing
that when determining the appropriateness
the Lovaas training.3 On the issue of
of the IFSP, the Hearing Officer should
reimbursing de Mora for the time she spent
have examined evidence of I.D.’s progress
training I.D., the Hearing Officer
before the Lovaas training began, as
commented:
opposed to her progress while both the
Lovaas and IFSP services were provided. In the present instance, time
The court found that Bucks County did not spent by Mrs. de Mora with
prove that the services they provided to I.D. is not in the same vein
I.D. before the private Lovaas training as a mother spending time
began produced meaningful progress with her child in the normal
toward the IFSP goals, and therefore the course of daily living
IFSP was not “appropriate” for I.D. De activities. Mrs. de Mora
Mora v. Dep’t of Pub. Welfare, 768 A.2d
904, 908 (Pa. Commw. Ct. 2001).
Because I.D. was making progress toward 3
The $3,520 award represents 88
her goals as a result of the combination of
hours Laudon spent training I.D. from
the private Lovaas training and the
October 8, 1999, to December 14, 1999.
services Bucks County was providing, the
The $6,842 award represents 311 hours
court held that the private Lovaas training
de Mora spent training I.D. during the
was appropriate. Id. On the issue of
same time period. Laudon and de Mora
providing an “appropriate” remedy for de
continued training I.D. through April 10,
Mora under 20 U.S.C. § 1439(a)(1), the
2000, the date on which I.D. lost
court held that even though I.D. was no
eligibility for early intervention services.
longer eligible for services under Part C of
However, the Commonwealth Court of
IDEA because she was over three years
Pennsylvania limited the Hearing
old, de M ora was “entitle[d] to
Officer’s consideration of reimbursement
reimbursement for her expenses in
to the number of hours Laudon and de
providing I.D. with private Lovaas
Mora spent from October 8, 1999, to
training.” Id. The court remanded the
December 14, 1999, because the
case back to the Hearing Officer to make
pleading only addressed this period of
findings as to the “actual costs” incurred
time. De M ora v. Dep’t of Pub. Welfare,
by de Mora in providing the private
768 A.2d 904, 908 n.16.
4
functioned as the provider with I.D. Bucks County did not appeal the
of discrete trial training for Hearing Officer’s order to reimburse de
I.D. under the rubric of Mora for the costs she incurred from hiring
Lovaas-based ABA. The Laudon. On cross-motions for summary
discrete trial training is not judgment, the District Court granted
an issue since it has been summary judgment in favor of de Mora.
determined to be appropriate Buc k s County Dep’t of Mental
for I.D. What may be Health/Mental Retardation v. de Mora, 227
somewhat out of th e F.Supp. 2d 426 (E.D.Pa. 2002). The
ordinary is that Mrs. de District Court concluded that IDEA does
Mora provided the training not preclude de Mora from obtaining
herself instead of paying a reimbursement for time expended
provider from outside the providing early intervention services to
home. I.D., nor is de Mora precluded from being
reimbursed because of her lack of formal
...
certification to provide the training. Id. at
E quitable cons ideratio n 427.
would indicate that there
Bucks County appealed to this
should be a recompense for
Court on October 21, 2002.
the expenditure of time by
Mrs. de Mora in providing
I.D. with what the County
III. JURISDICTION AND
should have provided. Were
STANDARD OF REVIEW
the County to have provided
I.D. with the discrete trial The District Court had jurisdiction
training in the place of Mrs. pursuant to 20 U.S.C. § 1439(a)(1) of the
de Mora, it would have appeal from the Hearing Officer’s
i n c urred the co st o f decision. We have jurisdiction of the
implementing discrete trial appeal from the District Court’s decision
training for I.D. pursuant to 28 U.S.C. § 1291.
On review of a district court’s
decision on a motion for summary
June 3, 2001 Decision of Hearing Officer
judgment, we exercise plenary review, and
at A52-53.
we are required to apply the same test the
The only issue Bucks County district court should have used initially.
appealed to the United States District S.H. v. State-Operated Sch. Dist. of
Court for the Eastern District of Newark, 336 F.3d 260, 269 (3d Cir. 2003).
Pennsylvania was whether it was proper to
Under IDEA, the District Court,
reimburse de Mora for the time she spent
acting as a reviewing court:
5
shall receive the records of . . findings of fact to avoid the impression
the administrative that it is substituting its own notions of
proceedings, shall hear sound . . . policy for those of the agency it
additional evidence at the reviews.” Id. As for the legal standards
request of a party, and, applied by the District Court, our review is
basing its decision on the plenary. Id.
p repond eran c e of th e
IV. DISCUSSION
evidence, shall grant such
relie f a s t h e c o u rt A . Statutory and R egulato ry
determines is appropriate. Framework
Under Part C of IDEA, the federal
government provides financial assistance
to the states when the states “develop and
20 U.S.C. § 1439(a)(1). Accordingly, the
implement a comprehensive, coordinated,
traditional standard fo r review ing
multidisciplinary, interagency system that
summary judgments is not applicable. As
provides early intervention services for
to findings of fact, the proper standard of
infants and toddlers with disabilities and
review for the District Court, and this
their families.” 20 U.S.C. § 1431(b)(1).
Court, is “modified de novo.” S.H., 336
Under Part C, infants and toddlers with
F.3d at 270. Under this approach,
disabilities, up to age three, are entitled to
reviewing courts are “required to defer to
early intervention services provided at no
the . . . [hearing officer’s] factual findings
cost and designe d to m eet the
unless . . . [they] can point to contrary
developmental needs of the children. See
nontestimonial extrinsic evidence on the
id. § 1432(4)(B), (C). The services are
record,” id., or “unless the record read in
provided by “qualified personnel,” id. §
its entirety would compel a contrary
1432(4)(F), and include, inter alia, family
conclusion.” Id. (quoting Carlisle Area
tr a inin g and c oun seling, s pecia l
Sch. v. Scott P., 62 F.3d 520, 529 (3d Cir.
instruction, occupational therapy, physical
1995). If the reviewing court receives
therapy, psychological services, and social
additional evidence, it is “free to accept or
work services. See id. § 1432(4)(E). All
reject the agency findings depending on
services, “to the maximum extent
whether those findings are supported by
appropriate, are provided in natural
the new, expanded record.” Id. (quoting
environments,” including the child’s home
Oberti v. Bd. of Educ. of the Clementon
and other settings where children without
Sch. Dist., 995 F.2d 1204, 1220 (3d Cir.
disabilities interact. See id. § 1432(4)(G).
1993)). If the reviewing court does not
All services must be provided in
receive additional evidence, “it must find
accordance with an IFSP. See id. §
support for any factual conclusions
1432(4)(H). Under Part C, the IFSP is
contrary” to the hearing officer’s and
developed with the cooperation and
“must explain why it does not accept the .
6
consent of the family, with an eye toward parents to an impartial due process
the “resources, priorities, and concerns of hearing. See id. § 1415(f).
the family.” See id. § 1436(a)(2). The
In addition to these procedural
IFSP contains a statement of the child’s
safeguards, Congress incorporated into
present levels of development, goals to be
IDEA a broad provision for judicial
achieved for the child and the child’s
review:
family, and the services necessary to meet
the stated goals. See id. § 1436(d). Any party aggrieved by the
Regulations mandate review of the IFSP at findings a nd decisio n
least every six months to determine how regarding an administrative
much progress has been made toward complaint shall have the
meeting the stated goals and whether any right to bring a civil action
changes to the plan are necessary. See id. with respe ct to the
§ 1436(b); 34 C.F.R. § 303.342. complaint in any State court
of competent jurisdiction or
Congress envisioned that the
in a district court of the
cooperative process of developing,
United States without regard
reviewing, and modifying IFSPs would
to the amount in
lead to disagreements between parents and
controversy.
the local agency in charge of administering
the program. It is easy to foresee that
conflicts will arise when parents and local
See id. § 1439(a)(1). On judicial review of
agencies have different perspectives on
a hearing officer’s decision, the court
what services are best for the child. To
“shall grant such relief as the court
protect the family’s right to early
determines is appropriate.” Id.
i n t e rv e n t i o n s e r v ic e s , C o n g r e ss
incorporated “procedural safeguards” into B.Reimbursing parents for the cost of
IDEA. 20 U.S.C. §§ 1415, 1439. These private replacement therapy is an
safeguards give the parents “[t]he “appropriate” remedy for IDEA
opportunity . . . to examine records relating violations.
to assessment, screening, eligibility
determinations, and the development and
implementation of the . . . [IFSP]” and The Supreme Court in School
mandate “[w]ritten prior notice to the Committee of the Town of Burlington,
parents . . . whenever the State agency or Massachusetts v. Department of Education
service provider proposes to initiate or of Massachusetts, interpreted IDEA’s
change or refuses to initiate or change . . . provision mandating reviewing courts to
the provision of appropriate early grant “appropriate” relief as conferring
intervention services.” See id. § broad discretion on those courts, and stated
1439(a)(4), (6). IDEA also entitles the that “the only possible interpretation is that
7
the relief is to be ‘appropriate’ in light of fashioning a remedy for an
the purpose of the Act.” 471 U.S. 359, IDEA violation, a district
370 (1985). 4 The Court in Burlington held court may wish to order
that reimbursing parents for expenses educational services, such as
incurred from placing their child in private comp ensatory education
school is “appropriate” relief when a court beyond a child’s age of
has found that the public school placement eligibility, or reimbursement
was inappropriate and that the parents’ for providing at private
private placement was appropriate. Id. expense what should have
been offered by the school,
We also have broadly interpreted
rather than compensatory
the term “appropriate.” In W.B. v. Matula,
damages for generalized
we “discern[ed] nothing in the text or
pain and suffering.
history suggesting that relief under IDEA
is limited in any way, and certainly no
‘clear direction’ to rebut the presumption
Id. at 495.
that all relief is available.” 67 F.3d 484,
494 (3d Cir. 1995). We also Here, the Commonwealth Court of
Pennsylvania determined that the IFSP
caution[ed] that in
was not “appropriate” because I.D. was
not making meaningful progress toward
her IFSP goals. The court also determined
4
In Burlington, the Court that the private training was appropriate.
interpreted the remedial provision under De Mora v. Dep’t of Pub. Welfare, 768
Part B of the Education of the A.2d at 908. Bucks County never
Handicapped Act, IDEA’s predecessor, appealed these findings.
which grants eligible children the right to
Because the Commonwealth Court
“free appropriate education.” 20 U.S.C.
determined that the privately delivered
§ 1415(a). While Part C of IDEA
services were appropriate and because
provides services to infants and toddlers,
Bucks County’s denial of these services
up to age three, in accordance with an
made the IFSP inappropriate and
IFSP, Part B provides special education
constituted a violation of IDEA, under
services to children from age three to
Burlington and under our own precedent,
twenty in accordance with an
de Mora is entitled to reimbursement for
individualized education plan (IEP). The
the privately delivered services. Bucks
remedial provisions under Part B and
County does not appeal the Hearing
Part C are, however, identical. Compare
Officer’s reimbursement award for the
20 U.S.C. § 1415(i)(2)(B) with 20 U.S.C.
costs de Mora incurred from hiring
§ 1439(a)(1) (both stating that the court
Laudon, however. It challenges the
“shall grant such relief as the court
reimbursement award for the time de Mora
determines is appropriate.”).
8
personally spent with I.D. That question is
an issue of first impression for this Court.
Because paying de Mora for her
C.Under Burlington, paying de Mora time constitutes reimbursement and not
for her time would constitute damages, we do not need to decide today
reimbursement, not damages. whether monetary damages may be
recovered in an action brought under
IDEA. In Burlington, the Supreme Court
The Pennsylvania Department of a d d r e s s e d t h e s a m e
Public Welfare filed a brief as Amicus r e i m b u r se m e n t / d a m a g e s a r gum e n t,
Curiae. The Department argues that rejected it, and defined reimbursement:
paying de Mora for her time would not be
Re imbur se me nt me r e ly
“appropriate” relief because she never
requires the Town to
incurred any out-of-pocket expenses by
belatedly pay expenses that
providing services to I.D. herself. The
it should have paid all along
Department contends further that paying
and would have borne in the
de Mora for the time she personally spent
f i r s t in sta nc e had it
would constitute a damages award, and
developed a proper IEP.
damages are not recoverable under IDEA.5
471 U.S. at 370-371. A damages award on
the other hand is recompense for
5
The Department cites Matula “generalized pain and suffering.” Matula,
for the proposition that damages are not 67 F.3d at 495; see also Polera v. Bd. of
recoverable in an action brought under Educ. of the Newburgh Enlarged City Sch.
IDEA. In Matula, we allowed the Dist., 288 F.3d 478 (2d Cir. 2002) (noting
awarding of monetary damages in an that a damages award “is redress for a
action brought under 42 U.S.C. § 1983 in broad range of harms associated with
which the plaintiff asserted a violation of personal injury, such as pain and suffering,
IDEA. 67 F.3d at 495. The Department emotional distress, harm to reputation, or
argues that damages are not allowed here other consequential damages.”).
because this is not a § 1983 action.
De Mora is not seeking recompense
We have not settled whether
for her or I.D.’s pain and suffering, mental
damages are recoverable in an action
anguish or other “damages” as a
arising solely under IDEA. See Matula,
67 F.3d at 494-95 (in a § 1983 action to
enforce IDEA, we noted that “even if we
were to limit our focus to IDEA itself, City Sch. Dist., 288 F.3d 478, 485 (2d
we discern nothing in the text or history Cir. 2002) (noting that in Matula we
suggesting that relief under IDEA is “addressed the issue without endorsing
limited in any way.”); see also Polera v. the view that damages are never
Bd. of Educ. of the Newburgh Enlarged available under the IDEA.”).
9
consequence of Bucks County’s violation party. If we limited reimbursement to
of IDEA. Reimbursement involves a “post actual out-of-pocket expenses, we would
h o c d e t e r m in a t i o n o f f i n a n c ia l g i v e a n a r r o w c o n st r u c ti o n to
responsibility,” Burlington, 471 U.S. at “appropriate,” and this would be contrary
371, and if Bucks County had provided the to both the Supreme Court’s broad
Lovaas training to I.D. as de M ora interpretation of the term in Burlington
requested, it would have borne the full and our own broad interpretation in
expense of the therapy. In fact, as a result Matula.
of the “post hoc determination of financial
Reimbursing parents for the time
responsibility” in this case, Bucks County
and services necessary for their child,
will actually be paying less than the cost it
when there has been an IDEA violation, is
would have borne had it met its burden of
not unheard of. The First Circuit in Hurry
providing the services in the first instance.6
v. Jones, 734 F.2d 879 (1984) held that in
It is true that the typical f a s h i o n in g “ a p p r o p r ia t e ” re l i ef ,
reimbursement cases involve reimbursing reimbursement should not be limited to
actual out-of-pocket expenses. See e.g., out-of-pocket expenses. In Hurry, the
Burlington, 471 U.S. 359 (cost of private school’s failure to provide door-to-door
education); Florence County Sch. Dist. transportation violated the Education of
Four v. Carter,
510 U.S. 7 (1993) (cost of t h e H a n d i c a p p e d A c t ( ID E A ’ s
private education); Adams v. Oregon, 195 predecessor). The main issue was whether
F.3d 1141 (9 th Cir. 1999) (cost of private the parents were entitled to reimbursement
therapy). However, “appropriate” should for driving their child to and from school.
not be read so narrowly so as to preclude Id. at 883-84. The court noted that it held
de Mora from being paid for her time just an “expansive view of reimbursement” and
because she did not write a check to a third concluded that the father was entitled not
only to reimbursement for the weekly
transportation costs he incurred, but also to
6
If Laudon had provided all 399 “compensation for the expenditure of time
hours of Lovaas training from October 8, and effort” for delivering the services that
1999 to December 14, 1999, Bucks the state should have provided. Id. at 884;
County would have had to pay a rate of see also Barnesville Exempted Village
$40/hour for a total cost of $15,960. Sch. Dist., 26 IDELR 1168, (LRP) No. 97-
Instead, Laudon provided 88 hours of 1 (June 30, 1997) (mother entitled to
training and de Mora provided 311 reimbursement for time she spent home-
hours. The Hearing Officer ordered schooling her son); cf. Straube v. Florida
reimbursement for Laudon’s time at a Union Free Sch. Dist., 801 F. Supp. 1164,
rate of $40/hour and de Mora’s time at a 1182 (S.D.N.Y. 1992) (distinguishing
rate of $22/hour for a total cost of Hurry and holding that a father was not
$10,362. Accordingly, Buck County is entitled to compensation for time spent
saving $5,598.
10
raising money to send his son to private charged. Second, the Hearing Officer
school because his time was not spent on noted that “the hourly rate so submitted
delivering the services but on raising [for de Mora] is within the range of the
money). The only danger that the Hurry cost of a teacher had the County employed
court recognized in allowing this type of such for I.D.” June 3, 2001 Decision of
reimbursement was the potential for Hearing Officer at A54. We take note of
excessive reimbursement. Hurry, 734 F.2d the Hearing Officer’s finding that $22 an
at 884. hour is within the range of the cost that
Bucks County would have had to pay and
D. Under Florence County, the Hearing
conclude that the level of reimbursement
Officer awarded a “reasonable level of
awarded is reasonable. We also conclude
reimbursement” to de Mora for her
that the total number of hours of Lovaas
time.
training was not excessive. The Lovaas
program recommends a total of 40 hours
per week of training, and the combined
The Supreme Court in Florence
number of hours of training provided by de
County cautioned that reimbursement
Mora and Laudon amounted to 40 hours
would not be “appropriate” if the cost of
per week. Therefore, reimbursing de Mora
the private replacement is unreasonable.
for 40 hours of private therapy is
510 U.S. 7, 16 (1993). The Court noted
reasonable. See T.H. v. Bd. of Educ. of
that “[c]ourts fashioning discretionary
Palatine Cmty. Consol. Sch. Dist., 55
equitable relief under IDEA must consider
F.Supp. 2d 830, 844-45 (N.D.Ill. 1999)
all relevant factors, including the
(reimbursement cost not excessive because
appropriate and reasonable level of
38-hour Lovaas program does not exceed
reimbursement that should be required.”
the range of appropriate treatment levels
Id.; accord Adams v. Oregon, 195 F.3d
recommended by experts).
1141, 1151 (9th Cir. 1999) (Parents “are
entitled to reimbursement if their private Reimbursement for De Mora’s time
placement and tutoring . . . was at the rate of $22 an hour is “well within
appropriate and reasonable.”). any reasonable estimate of fair
reimbursement.” Hurry, 734 F.2d at 884.
The Department argues that the
Moreover, as we indicated above, if
amount the Hearing Officer awarded is not
Laudon had provided all of the hours of
a “reasonable level of reimbursement,” yet
training, Bucks County would have to
it does not offer any explanation why the
make reimbursement at a higher level.
amount is unreasonable. In fact, the
amount that the Hearing Officer awarded E.De Mora is entitled to reimbursement
de Mora for her time is a “reasonable level even though she does not fit IDEA’s
of reimbursement.” First, de Mora is definition of “qualified personnel.”
reimbursed for her time at $22/hour,
approximately half the rate that Laudon
11
Bucks County argues that practice in the field.
reimbursing de Mora would not be
There is support, however, from the
“appropriate” because she is not “qualified
Supreme Court for the proposition that
personnel.” Bucks County is correct in
although the state is required to use
asserting that de Mora is not “qualified
“qualified personnel” when the state is
personnel” as defined by IDEA and its
providing the services, parents are not
regulations.7 She does not have a formal
required to find a replacement who meets
education in behavioral science and does
the definition of “qualified personnel”
not hold a license or certification to
when the state fails to provide appropriate
services and there is an IDEA violation.
Florence County, 510 U.S. at 14. In
7
The IDEA defines “qualified Florence County, the Supreme Court held
personnel” as t h a t p a r e n t s w e r e e n ti t le d t o
(i) special educators; reimbursement for private education
(ii) speech-language expenses even though the private school
pathologists and did not meet state standards. The Court
audiologists; reasoned that if parents were required to
(iii) occupational place their children in schools that do meet
therapists; the state’s requirements, it would eliminate
(iv) physical therapists; their right to withdraw their child from the
(v) psychologists; inappropriate placement and the child’s
(vi) social workers; right to an appropriate education. Id. at
(vii) nurses; 14.
(viii) nutritionists;
Similarly, the requirement that
(ix) family therapists;
“qualified personnel” deliver the services
(x) orientation and mobility
under Part B of IDEA does not make sense
specialists; and
in the context of choosing substitutions for
(xi) pediatricians and other
therapy. De Mora’s rejection of the
physicians.
existing IFSP, and Bucks County’s failure
20 U.S.C. § 1432(4)(F); see also 34
to modify the plan to conform to her
C.F.R.§ 303.12(e) (containing a similar
wishes, are the reasons she decided to look
list of professions). “Qualified” is
for a private therapist. It would be
defined in the regulations as “a person
inconsistent with IDEA’s goals to forbid
[who] has met State approved or
parents from using a replacement to
recognized certification, licensing,
provide appropriate early intervention
registration, or other comparable
services “‘simply because that . . . [person]
requirements that apply to the area in
lacks the stamp of approval of the same . .
which the person is providing early
. system that failed to meet the child’s
intervention services.” 34 C.F.R. §
needs in the first place.’” Id. at 14 (citing
303.22.
12
Carter v. Florence County Sch. Dist. Four, F.De Mora should be reimbursed
950 F.2d 156, 164 (4th Cir. 1991)).8 because she acted as a service provider
and provided therapy to I.D.
8
Bucks County also argues that
We now reach the crucial question
Laudon was not qualified to train de
in this appeal. Can de Mora, as a parent,
Mora and that Laudon and de Mora did
be reimbursed for providing the Lovaas
not implement a professional discrete
training to I.D. Bucks County and the
trial program. Bucks County asserts that
Department argue that reimbursing de
Laudon did not develop a written
Mora would be compensating her for
curriculum to document the program and
doing exactly what Congress intended
that neither Laudon nor de Mora kept
parents to do, i.e., actively participate in
daily logs or records covering I.D.’s
the provision of the early intervention
success.
services. They argue that while Congress
First, by challenging de M ora’s
intended parents to be actively involved,
qualifications as well as Laudon’s and de
C o n g r e s s d i d n o t c o n t em p l a t e
Mora’s alleged failure to develop a
c o m p e n s a t in g p a r e n t s f o r t h e ir
written curriculum and document I.D.’s
participation. Congress did indeed
success, Bucks County is really
contemplate parental involvement and
challenging the appropriateness of the
participation in the provision of early
private training that Laudon and de M ora
intervention services. The E arly
provided. However, the
Intervention Program is directed at
inappropriateness of the IFSP and the
meeting the needs of eligible children and
appropriateness of the private therapy
the needs of families “related to enhancing
has already been adjudicated by the
the child’s development.” 34 C.F.R. §
Commonwealth Court, and Bucks
303.12; accord 34 C.F.R. § 303.11 Under
County did not appeal those findings.
IDEA, early intervention services include
Second, as the District Court
family training and counseling. The state
remarked, Bucks County’s argument that
de Mora did not document I.D.’s success
and therefore did not implement a proper
discrete trial training program does not award to de Mora for her time on that
square with its position with respect to ground, yet it did not challenge the award
Laudon. Bucks County Dep’t of Mental with respect to Laudon. In addition,
Health/Mental Retardation, 227 F.Supp. Bucks County blames de Mora for not
2d at 430. According to Bucks County, integrating the Lovaas-based therapy into
Laudon did not document I.D.’s success the IFSP. It was de Mora, however, who
during the time that she and de Mora wanted in the first place to integrate as
were using the new program. Bucks program into the IFSP. Bucks County
County challenges the reimbursement turned her away.
13
must p r o vide “a family-dire cted specific context of this case. Burlington
assessment of the resources, priorities, and held that, in order to satisfy Congress’
concerns of the family and the intent that the services provided under
identification of the support and services IDEA be free, parents are entitled to seek
necessary to enhance the family’s capacity retroactive reimbursement for providing
to meet the developmental needs of the appropriate replacement services where
infant or toddler.” 20 U.S.C. §§ the state has failed to meet is obligations.
1436(a)(2), 1432(4)(E); 34 C.F.R. § We have recognized, however, that not all
303.12(c)(2). The parents are expected to paren ts are capa ble of obtain ing
participate in the development of the IFSP, appropriate replacement services. See
and “[t]he contents of the . . . [IFSP] shall Lester H. v. Gilhool, 916 F.2d 865, 872-73
be fully explained to the parents and (3d Cir. 1990). In Lester H., a case arising
informed written consent from the parent under Part B, we held that “Congress, by
shall be obtained prior to the provision of allowing the courts to fashion an
early intervention services.” 20 U.S.C. § appropriate remedy to cure the deprivation
1436(a)(3), (e); 34 C.F.R. § 303.12(a)(2). of a child’s right to a free appropriate
public education, did not intend to offer a
Although Congress envisioned
remedy only to those parents able to afford
parental involvement, however, Congress
an alternative private education.” Id. at
primarily contemplated that Bucks County
873. We therefore concluded that an
would provide the early intervention
“appropriate” remedy encompasses the
services to I.D. and her family at no cost
power of a court to order school authorities
and that de Mora and her family would not
to provide compensatory education to a
have to resort to providing those services
child, even beyond the child’s age of
or paying for them. The level of parental
eligibility for such services under Part B.
involvement that Congress intended when
a state meets its burden of providing In this case, de Mora was certainly
appropriate early intervention services is able to afford appropriate replacement
entirely separate from what Congress services for I.D., but could not find anyone
intended as a remedy when a state fails to to provide those services. She was
meet that burden. Congress contemplated consequently faced with precisely the same
a broad remedy when it gave reviewing dilemma as the parents in Lester H.: the
cour ts the disc reti on to a w a r d state was not providing appropriate
“appropriate” relief. “Congress expressly services and she was unable to obtain
contemplated that the courts would fashion replacement services. Consistent with our
remedies not specifically enumerated in holding in Lester H., we must accept the
IDEA.” Matula, 67 F.3d. at 494-95. proposition that de Mora is entitled to
some type of remedy that is consistent with
There is another compelling reason
the purposes of Part C of IDEA. Because
for our conclusion that Congress intended
of significant differences between Part B
the remedy sought by de Mora in the
14
and Part C, however, the compensatory U.S.C.C.A.N. 2401, 2415. By providing
remedy that was available in Lester H. early intervention services during these
would be ineffective and insufficient for crucial first three years of a disabled
correcting Bucks County’s violation in this child’s life, Congress sought “to minimize
case. their potential for developmental delay,”
20 U.S.C. § 1431(a)(1), and “to reduce the
First, whereas a compensatory
educational costs to our society . . . by
remedy may be effective under Part B
minimizing the need for special education
because it allows disabled children to
and related services after infants and
receive free services beyond their age of
toddlers with disabilities reach school
eligibility, such a remedy provides no
age.” Id. § 1431(a)(2).
benefit under Part C because disabled
infants and toddlers become immediately Given the high aspirations that
eligible for Part B services upon reaching Congress intended for Part C services, and
age three. the quite brief amount of time allotted to
achieve those aspirations, we are
Second, and more significantly,
convinced that, faced with the choices of:
Congress could not have intended that de
(1) capitulating to Bucks County’s
Mora expend valuable time litigating the
pr ovision o f inapprop riate early
appropriateness of I.D.’s IFSP in order to
intervention services to I.D., (2) expending
thereafter obtain a compensatory remedy.
the time necessary to seek a compensatory
This is because Part C evidences a
remedy, or (3) getting trained to provide
recognition that the timely provision of
appropriate services to I.D. herself,
appropriate services to disabled infants and
providing such services, and thereafter
toddlers between birth and age three is
c o m m e n c i n g l i ti g a t io n t o s e ek
crucial for their development. In enacting
reimbursement for her efforts, Congress
Part C, Congress recognized that these
intended de Mora both to have, and to
beneficiaries in particular “would be at
exercise, the third option. This third
risk of having substantial developmental
option seems especially appropriate in the
delay if they d[o] not receive early
case at hand, where de Mora was able to
intervention services.” 20 U.S.C. §
acquire the necessary Lovaas training and
1431(b)(4). The House Committee on
transition into the role of service-provider
Education and Labor sp ecif ically
seam lessly w ithout any resultant
acknowledged this problem when it stated
interruption or delay in I.D.’s program.
that “[i]t is also the Committee’s intent
We do not presume that a parent will be
that the procedures developed by the State
able, or willing, to exercise this option in
result in speedy resolution of complaints
every case, but where he or she does,
because an infant’s development is rapid
reimbursement for the reasonable value of
and therefore undue delay could be
those efforts is con sistent w ith
potentially harmful.” H. R. Rep. No. 99-
Congressional intent to provide an
860, at 14 (1986), reprinted in 1986
15
“appropriate” remedy. does not compel a different finding.
Furthermore, the additional evidence the
Bucks County’s argument about
District Court received, in the form of
parental involvement would be more
depositions and affidavits, supports the
convincing if in fact de Mora had merely
Hearing Officer’s findings.
been acting as an involved parent. There
is, however, ample evidence in the record Laudon trained de Mora by
to support the conclusion that de Mora engaging in one-on-one workshops where
stepped into the shoes of a therapist, de Mora would act as the implementer of
ultimately acting over and above what is the Lovaas curriculum and Laudon would
expected of parents under IDEA. The coach her. The implementer is the
Hearing Officer made a finding that de therapist who works one-on-one with the
Mora was herself a trial training provider: child in a controlled environment to help
the child master certain tasks. The parent
In the present instance, time
is usually referred to as a generalizer
spent by Mrs. de Mora with
because the parent generalizes the skills
I.D. is not in the same vein
learned in therapy into the home
as a mother spending time
environment. For example, in therapy, the
with her child in the normal
implementer and the child may be working
course of daily living
on matching objects to pictures. During
activities. Mrs. de Mora
implementation, the child would repeat the
functioned as the provider
task until the child performed it correctly.
of discrete trial training for
During generalization, the parent may ask
I.D.
the child to match an object to a picture
while they are in the kitchen getting ready
for dinner. During the generalization
June 3, 2001 Decision of Hearing Officer
process, the parent does not teach the child
at A52-53. The District Court agreed and
how to master new tasks but reinforces the
found that “Mrs. de Mora, in providing the
training initiated by the implementer.
Lovaas training, acted well beyond the
parental role contemplated under Part C.” This workshop method is the same
Bucks Cou nty Dep’t of M enta l method by which Laudon was trained and
Health/Mental Retardation v. De M ora, which Laudon used to train other
227 F.Supp. 2d at 429. The District Court implementers. De M ora read and learned
was required to defer to this finding unless discrete trial training teaching guidelines
it could point to contrary nontestimonial and other books on the Lovaas
extrinsic evidence. S.H., 336 F.3d at 270. methodology. It is evident from her
There is no contrary nontestimonial deposition that she is very familiar with
extrinsic evidence that the District Court the guidelines. She also spent many hours
could have relied on to make a different watching Laudon act as an implementer
finding. A reading of the entire record and talking to Laudon on the phone. Lisa
16
Parker, the Early Intervention Coordinator
at Bucks County, testified at the due
process hearing that, in her opinion, de
Mora not only acted as a parent, as
Mora was qualified to train I.D.
Congress intended, but also acted as a
The evidence here supports the service provider. Furthermore, this
conclusion that de Mora acted not only as argument overlooks the fact that parental
a generalizer but also as an implementer. involvement is contemplated throughout
De M ora is familiar with the discrete trial all of IDEA. While eligible children and
training techniques. When questioned, de their families are the recipients of
Mora was able to give concrete examples services under Part C, 20 U.S.C. § 1433
of how she worked with I.D. as an (“provide early intervention services for
implementer to master certain tasks. She infants and toddlers with disabilities and
testified that she was very learned in the their families”), and children alone are
teaching guidelines, and noted the the recipients of services under Part B,
importance of strict adherence to the 20 U.S.C. § 1411 (“provide special
guidelines in order to achieve positive education and related services to children
results. Finally, the affidavits from four with disabilities”), this does not mean
other therapists who were present in the that Congress envisioned parental
home with de Mora and observed de Mora involvement to differ as soon as a child
perform the Lovaas training confirm that turns three years old, becomes eligible
De Mora was acting as a therapist, not as a for special education services, and loses
mother, when she was working with I.D.9 eligibility for early intervention services.
As the Supreme Court noted in
Burlington, “[i]n several places, [Part B
9
The Department of Public of] the Act emphasizes the participation
Welfare correctly points out that Part C of the parents in developing the child’s
of IDEA, which governs early educational program and assessing its
intervention services for infants and effectiveness.” 471 U.S. at 368; see also
toddlers, includes parents and children in 20 U.S.C. §§ 1400(c), 1401(19), 1412(7),
service delivery, whereas Part B, which 1415(b)(1)(A), (C), (D), (E), 1415 (b)(2);
governs special education services for 34 C.F.R. § 300.345 (1984).
school-age children, includes only The Department of Public Welfare
children in service delivery. This also argues that de Mora should not be
difference, they assert, strengthens their compensated because the Lovaas
argument that the time de Mora spent program places emphasis on parental
with I.D. was time for which Congress involvement, and “M rs. de Mora’s
intended her to spend and not be involvement in her child’s programming
compensated. was entirely consistent with the parental
This argument overlooks the role expected by and, indeed, critical to
crucial finding that, as we discussed, de the success of . . . the Lovaas program in
17
Moreover, affirming the District
Court will not have as far reaching effects
G.“Equitable considerations” favor
as the Department of Public Welfare
reimbursing de Mora.
imagines. Reimbursement under the
The Department urges us to reverse particular facts of this case will be limited
the District Court’s decision because to situations where 1) there has been a
“[a]lthough intending to constrain the violation of IDEA and appropriate private
effect of its decision, the district court services were provided, see Burlington,
instead identified considerations that will 471 U.S. at 370, 2) the amount of the
apply to virtually every successful reimbursement is reasonable, see Florence
administrative challenge to an IFSP under County, 510 U.S. at 16, and 3) a trained
Part C.” To the extent the Department is service provider was not available so that
expressing a concern over the potential the parent stepped in to act as the trained
financial burden on Bucks County, it is not service provider and not as a parent.
a viable one. Bucks County had the
Finally, “equitable considerations
opportunity, upon de Mora’s request, to
are relevant in fashioning relief.”
provide appropriate early intervention
Burlington, 471 U.S. at 374. Bucks
services. If Bucks County had complied
County carries the burden of providing
with IDEA’s mandate, they “need not
appropriate early intervention services, but
worry about reimbursement claims.”
Bucks County failed to meet this burden.
Florence County, 510 U.S. at 15.
De Mora was left with a choice. She could
have accepted the original IFSP, which at
the time she thought would be to I.D.’s
particular.” It is true that the Lovaas detriment, or she could have found
program, like IDEA, envisions parental appropriate replacement services. She
involvement. In particular, under the opted to find someone to provide the
Lovaas program, parents are supposed to Lovaas training. However, she ran into yet
reinforce the skills that the children have another obstacle -- the one person she did
already learned from working with the find could not work the hours that I.D.
therapist. Parental involvement in this needed under the program to obtain better
capacity is designed with the aim of results. De Mora could not find another
generalizing skills the child learns into provider to work the remaining hours so
unstructured daily activities. O. IVAR she chose to train in discrete trial
L OVAAS ET AL., T EACHING INDIVIDUALS methodology and provide the therapy to
WITH DEVELOPMENTAL DELAYS, 311 (Pro I.D. herself. She spent many hours in
Ed 2002) (see Chapter 32 titled training with Laudon and acted as an
“Involving Parents in Treatment”). Like implementer of discrete trial therapy. “It
IDEA, however, the Lovaas program would be an empty victory to have a court
does not envision parents acting as tell . . . [de Mora] several years later that
service providers, as de Mora did here.
18
. . . [she] was right” but that she is not reimburse Mrs. de Mora for her services
entitled to reimbursement for the time she delivered directly to her child.
spent providing therapy. Id. at 370. If that
The majority cites no statutory
were the case, the family’s right to
provision or regulation authorizing such
appropriate early intervention services at
payment. The majority agrees with Bucks
no cost would be denied.
County that Mrs. de Mora does not fall
V. CONCLUSION within the category of “qualified
personnel” as defined in the statute.
For the foregoing reasons, we will
Instead, it bases its decision approving
affirm the District Court’s grant of
reimbursement to the mother of the
summary judgment in de Mora’s favor.
d i s a b le d c h ild o n “ e q u i ta b le
considerations.”
B U C K S C O U N T Y v . I am concerned that the majority
COMMONWEALTH OF PA has set a precedent that opens a wide gap
between that w hich is prope rly
No. 02-3919
reimbursable and that which is not.
Parental involvement with a disabled child
should be expected as a matter of course.
Nonetheless, because the majority takes
SLOVITER, Circuit Judge, concurring. pains to limit the scope of its decision, and
in particular because of its conclusion that
I agree with much of the majority’s
“a trained service provider was not
opinion in this case, and see no reason to
available,” I join its judgment, albeit with
repeat either the facts or the arguments of
reservations.10
the parties. In particular, I agree with the
majority’s approval of the order requiring
Bucks County to reimburse Mrs. de Mora
for the expenses that she incurred in
10
paying Laudon for the services she I am personally familiar with
performed. Although Bucks County Bucks County. It is not in the
suggests that Laudon was not a qualified wilderness. It borders the City of
professional because she had no training or Philadelphia, and is home to numerous
experience in developing and imparting fine hospitals, medical centers and
the requisite knowledge of the Lovaas professionals. However, I have no basis
program to others, Bucks County does not to dispute the majority’s conclusion that
challenge the administrative officer’s order Mrs. de Mora could not find a qualified
authorizing repayment for Laudon’s own professional. I have no personal
services. It does appeal, however, the familiarity with the Lovaas program and
order of the District Court requiring it to therefore do not know whether it is or is
not commonly available.
19
