Bucks County Dept./Mental Health v. Pennsylvania

• Decision Date: 18 August 2004
• Docket Number: No. 02-3919.,02-3919.
• Citation: 379 F.3d 61
• Parties: BUCKS COUNTY DEPARTMENT OF MENTAL HEALTH/MENTAL RETARDATION, Appellant v. Commonwealth of PENNSYLVANIA, Department of Public Welfare; Barbara Demora.
• Court: U.S. Court of Appeals — Third Circuit

379 F.3d 61

BUCKS COUNTY DEPARTMENT OF MENTAL HEALTH/MENTAL RETARDATION, Appellant v. Commonwealth of PENNSYLVANIA, Department of Public Welfare; Barbara Demora.

No. 02-3919.

United States Court of Appeals, Third Circuit.

Argued October 15, 2003.

Opinion Filed August 18, 2004.

Appeal from the United States District Court for the Eastern District of Pennsylvania, 227 F.Supp.2d 426, Berle M. Schiller, J Robert O. Baldi, (Argued), New Hope, PA, for Appellant.

Doris M. Leisch, (Argued), Commonwealth of Pennsylvania, Department of Public Welfare, Philadelphia, Daniel M. Fellin, Commonwealth of Pennsylvania, Office of Legal Counsel, Department of Public Welfare, Harrisburg, PA, for Amicus-Comm. of PA.

Gary S. Mayerson, (Argued), Mayerson & Associates, New York, NY, for Appellees.

Before SLOVITER, ROTH and STAPLETON, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge.

This case arises under the Individuals with Disabilities in Education Act, 20 U.S.C. § 1400, et seq (1998) (IDEA). The defendant, Bucks County Department of Mental Health and Mental Retardation (Bucks County), appeals the District Court's grant of summary judgment in favor of Barbara de Mora, the plaintiff. The District Court affirmed the Hearing Officer's award, reimbursing de Mora for the time she spent working with her disabled daughter after Bucks County refused to provide the specific therapy de Mora requested as part of her daughter's therapy program.

Because the review process is a long one and children are eligible for services under Part C of IDEA only up to the age of three, parents face difficult issues when a state denies services, including the interim provision of services for the child and the financial responsibility for those services. The issue we are called upon to resolve is whether paying de Mora for the time she personally spent working with her daughter after Bucks County refused to provide services is "appropriate" relief under 20 U.S.C. § 1439(a)(1).

We will affirm the District Court. After taking into account "equitable considerations," School Committee of the Town of Burlington, Massachusetts v. Department of Education of Massachusetts, 471 U.S. 359, 374, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), we hold that under the particular circumstances of this case, where a trained service provider was not available and the parent stepped in to learn and perform the duties of a trained service provider, reimbursing the parent for her time spent in providing therapy is "appropriate" relief.

I. FACTUAL BACKGROUND

Barbara de Mora's daughter, I.D.,¹ was diagnosed with pervasive developmental delay, cerebral palsy, and deafness. Because I.D. has developmental delays, she was eligible for early intervention services under Part C of IDEA. Under IDEA, the Office of Mental Retardation of the Pennsylvania Department of Welfare administers the Pennsylvania Early Intervention Program for infants and toddlers from birth up to age three. Bucks County is the local mental health and mental retardation office responsible for coordinating services for I.D.

De Mora and Bucks County worked together to develop an individualized family service plan (IFSP) for I.D. The IFSP outlined goals and objectives for I.D. as well as services that I.D. needed to receive in order to obtain the stated goals and objectives. The IFSP was modified several times after it was first developed on July 1, 1999, and ultimately provided I.D. with 24.25 hours each week of physical therapy, speech therapy, occupational therapy, and special instruction.

De Mora grew dissatisfied with I.D.'s program because she did not feel I.D. was benefitting from it. In September 1999, de Mora requested that I.D.'s IFSP be amended to provide for additional hours of therapy. She also indicated to Bucks County a preference for the Lovaas methodology of early intervention training and asked Bucks County to hire Patricia Laudon, a Lovaas-trained therapist, to provide the Lovaas training.² Bucks County refused to provide more hours of therapy and also refused to provide a Lovaas training program for I.D. Because de Mora was convinced that the Lovaas training would benefit I.D., she hired, without Bucks County's support, Laudon, who in turn provided in-home therapy to I.D. from October 8, 1999, through April 10, 2000.

Because Laudon was not able to spend as many hours with I.D. as I.D. needed and because de Mora was unable to find another person trained in Lovaas methodology, Laudon trained de Mora so that de Mora would be able to provide the Lovaas therapy to I.D. Laudon held one-on-one workshops where de Mora would act as the Lovaas therapist as Laudon coached her. De Mora read and learned discrete trial training teaching guidelines and other books on the Lovaas methodology. Lisa Parker, the Early Intervention Coordinator at Bucks County, testified at the due process hearing that, in her opinion, de Mora was qualified to train I.D. De Mora spent many hours working with I.D. as a Lovaas therapist without Laudon's presence. When de Mora was deposed, she gave specific examples of training exercises she executed when training I.D. I.D.'s therapists provided affidavits confirming that de Mora was acting as a Lovaas therapist, not as a mother, when she was working with I.D.

II. PROCEDURAL HISTORY

After Bucks County refused to amend the IFSP to provide I.D. with more hours of therapy and Lovaas training, de Mora requested a due process hearing. The Hearing Officer noted that de Mora believed that I.D. had showed immediate improvement with the initiation of the Lovaas training, but concluded that the existing IFSP was "appropriate" under 34 C.F.R. § 303.344, and therefore I.D. was not entitled to any more hours of therapy or additional hours for Lovaas training:

The County presented evidence that I.D. made progress from services provided in her IFSP before and along with Lovaas. It is understandable that the parents would ask for what they may consider as the best program and/or methodology. It may be argued that I.D.'s progress under the County services was not good enough when compared to or in conjunction with another. The County, however, does not have the mandate to provide the best.

December 31, 1999 Decision of Hearing Officer at A41.

De Mora appealed the Hearing Officer's decision to the Commonwealth Court of Pennsylvania. The court noted that when determining the appropriateness of the IFSP, the Hearing Officer should have examined evidence of I.D.'s progress before the Lovaas training began, as opposed to her progress while both the Lovaas and IFSP services were provided. The court found that Bucks County did not prove that the services they provided to I.D. before the private Lovaas training began produced meaningful progress toward the IFSP goals, and therefore the IFSP was not "appropriate" for I.D. de Mora v. Dep't of Pub. Welfare, 768 A.2d 904, 908 (Pa.Commw.Ct.2001). Because I.D. was making progress toward her goals as a result of the combination of the private Lovaas training and the services Bucks County was providing, the court held that the private Lovaas training was appropriate. Id. On the issue of providing an "appropriate" remedy for de Mora under 20 U.S.C. § 1439(a)(1), the court held that even though I.D. was no longer eligible for services under Part C of IDEA because she was over three years old, de Mora was "entitle[d] to reimbursement for her expenses in providing I.D. with private Lovaas training." Id. The court remanded the case back to the Hearing Officer to make findings as to the "actual costs" incurred by de Mora in providing the private training. Id. Bucks County did not appeal the Commonwealth Court's decision.

On remand from the Commonwealth Court of Pennsylvania, the Hearing Officer ordered Bucks County to reimburse de Mora $3,520 for expenses she incurred in paying Laudon and $6,842 for the time she personally spent providing the Lovaas training.³ On the issue of reimbursing de Mora for the time she spent training I.D., the Hearing Officer commented:

In the present instance, time spent by Mrs. de Mora with I.D. is not in the same vein as a mother spending time with her child in the normal course of daily living activities. Mrs. de Mora functioned as the provider of discrete trial training for I.D. under the rubric of Lovaas-based ABA. The discrete trial training is not an issue since it has been determined to be appropriate for I.D. What may be somewhat out of the ordinary is that Mrs. de Mora provided the training herself instead of paying a provider from outside the home.

...

Equitable consideration would indicate that there should be a recompense for the expenditure of time by Mrs. de Mora in providing I.D. with that the County should have provided. Were the County to have provided I.D. with the discrete trial training in the place of Mrs. de Mora, it would have incurred the cost of implementing discrete trial training for I.D.

June 3, 2001 Decision of Hearing Officer at A52-53.

The only issue Bucks County appealed to the United States District Court for the Eastern District of Pennsylvania was whether it was proper to reimburse de Mora for the time she spent with I.D. Bucks County did not appeal the Hearing Officer's order to reimburse de Mora for the costs she incurred from hiring Laudon. On cross-motions for summary judgment, the District Court granted summary judgment in favor of de Mora. Bucks County Dep't of Mental Health/Mental Retardation v. de Mora, 227 F.Supp.2d 426 (E.D.Pa.2002). The District Court concluded that IDEA does not preclude de Mora from obtaining reimbursement for time expended providing early intervention services to I.D., nor is de Mora precluded from being reimbursed because of her lack of formal certification to provide the training. Id. at 427.

Bucks County appealed to this Court on October 21, 2002.

III. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 20 U.S.C. §...