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