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BUCKS COUNTY DEPT. OF MENTAL HEALTH v. DE MORA

October 3, 2002

BUCKS COUNTY DEPARTMENT OF MENTAL HEALTH/MENTAL RETARDATION, PLAINTIFF,
V.
BARBARA DE MORA, DEFENDANT.



The opinion of the court was delivered by: Schiller, District Judge.

MEMORANDUM AND ORDER

The multifaceted Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 (2002) et seq, mandates that in return for acceptance of certain federal funding states must provide a variety of services to children and students under the age of twenty with disabilities. At issue here is Part C of the IDEA, 20 U.S.C. § 1431 et seq, which governs the provision of "early intervention services" to developmentally-challenged infants and toddlers. This action is an appeal from a state administrative hearing officer's decision in favor of Barbara de Mora under Part C of the IDEA. In its appeal, Bucks County Office of Mental Health and Mental Retardation ("Bucks County") challenges that portion of the hearing officer's decision that ordered reimbursement to Ms. de Mora for the time she spent providing early intervention services to her daughter, I.D.*fn1 Whether, under Part C of the IDEA, parents may be reimbursed for early intervention services they personally provide to their children is one of first impression in this circuit.*fn2

I find that the IDEA does not preclude a parent (Barbara de Mora) from seeking and obtaining reimbursement for her time expended in providing early intervention services for her child under certain circumstances. In addition, I find that the fact that Ms. de Mora had not obtained formal certification for the training she provided I.D. does not preclude reimbursement. The parties have filed cross-motions for summary judgment, and for the reasons set forth below, I grant Ms. de Mora's motion and affirm the hearing officer's decision.

I. FACTUAL BACKGROUND

I.D., who was born in April 1997, has been diagnosed as having cerebral palsy and deafness. See de Mora v. Dep't of Pub. Welfare, 768 A.2d 904, 905, 906 n. 3 (Pa.Commw.Ct. 2001). While an infant, I.D. was also identified as having developmental delays, making her eligible for early intervention services. See id. at 906. In July 1999, Bucks County developed an Individualized Family Service Plan ("IFSP") for I.D. that included physical therapy, speech therapy, occupational therapy, and other special instruction. See id.*fn3 Not satisfied with the IFSP, Ms. de Mora requested that Bucks County amend I.D.'s IFSP to include additional therapeutic services and expressed a preference for the Lovaas methodology of early intervention training. See id. Despite Ms. de Mora's requests, Bucks County declined to incorporate additional therapy or a Lovaas-based program. See id.*fn4

Without the support of Bucks County, Ms. de Mora hired Patricia Laudon, an experienced Lovaas therapist, to provide home-based therapy to I.D. See id. Because Ms. Laudon's time was limited and Ms. de Mora was unable to find a therapist other than Ms. Laudon to administer the Lovaas therapy, Ms. de Mora requested that Ms. Laudon train her in the Lovaas methodology. (Def.'s Mot. for Summ. J., Ex. 10 (de Mora Decl.).) Thus, in conjunction with I.D.'s program, Ms. Laudon trained Ms. de Mora to perform the Lovaas techniques herself. (de Mora Dep. at 39.) Having received this instruction, Ms. de Mora spent a substantial amount of time providing I.D. with therapy.

Furthermore, after Bucks County refused to amend I.D.'s program to include Lovaas therapy, Ms. de Mora commenced administrative proceedings against the county pursuant to 20 U.S.C. § 1439. In an opinion dated January 4, 2000,*fn5 Hearing Officer David Lee found that Bucks County's IFSP was appropriate. On appeal, however, the Pennsylvania Commonwealth Court reversed the hearing officer's finding and remanded the case with instructions to reimburse Ms. de Mora "for her expenses in providing [I.D.] with private Lovaas training for the period from October 8, 1999 to December 14, 1999."*fn6 de Mora v. Dep't of Pub. Welfare, 768 A.2d 904, 908-09 (Pa.Commw.Ct. 2001).

Upon remand,*fn7 the hearing officer calculated Ms. de Mora's expenses to be $10,362.00. That total encompassed two categories of charges: (1) $3,520.00 to reimburse Ms. de Mora for Ms. Laudon's eighty-eight hours of Lovaas-based consultation, training and direct implementation, and (2) $6,842.00 to reimburse Ms. de Mora for her own time "directly related to the Lovaas-based program." Hearing Officer's Op. at 2-4 (June 3, 2001). Regarding reimbursement to Ms. de Mora for her own time, the hearing officer found that Ms. de Mora had provided the "training herself instead of paying a provider." See id. at 4. The hearing officer determined the amount of the award by multiplying the 311 hours expended by a rate of $22 per hour he determined to be reasonable in light of market rates. See id. at 4-5.

Bucks County then filed a complaint in the nature of an appeal in this Court, solely challenging the hearing officer's $6,842.00 award to reimburse Ms. de Mora for her own time. The parties have now filed cross-motions for summary judgment.

II. DISCUSSION

A. Standard of Review

Under the IDEA, a reviewing court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. See 20 U.S.C. § 1415 (i)(2)(B). Thus, the reviewing court should not adopt the traditional summary judgment standard of review. See Heather S. v. State of Wis., 125 F.3d 1045, 1052 (7th Cir. 1997).

Instead, reviewing courts should apply a "modified" de novo standard of review. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). In doing so, courts must form their own opinions of the record, evaluating each element of the hearing officer's ruling. See Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997). District courts have discretion to determine how much ...


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