Bucks Cty Dept v. Comm PA Dept Welfare

• Court: Court of Appeals for the Third Circuit
• Decided: August 18, 2004
• Docket: 02-3919
• Status: Published

Opinion

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Bucks Cty Dept v. Comm PA Dept Welfare Precedential or Non-Precedential: Precedential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

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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 open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 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.