In a case of first
impression within the federal circuit, U.S. District
Judge Berle M. Schiller of the Eastern
District of Pennsylvania has ruled
that a mother who provided "early intervention services"
for her own developmentally disabled
child is entitled to be reimbursed for her work
despite never being formally certified
to provide such professional care.
Significantly,
Schiller held in Bucks County Department of Mental Health
v. De Mora that the Individuals
with Disabilities Education Act does
not preclude parents from seeking
reimbursement analogous to wages for
work with
their own disabled children.
Schiller also
rejected the argument that reimbursement was inappropriate
since a parent is already
considered an "important component" of any early
intervention program.
Instead, Schiller
found that Barbara De Mora "acted well beyond the
parental role" when she took on
the task of providing specialized
services to her infant after Bucks
County, Pa., refused to provide the services for
free.
De Mora's daughter,
who is identified in court papers only as "I.D.," was
born in April 1997, and was later
diagnosed as having cerebral palsy and
deafness.
While an infant, she
was also identified as having developmental delays,
making her eligible for early
intervention services. In July 1999, Bucks
County developed an Individualized Family Service Plan,
or IFSP, that
included physical therapy, speech therapy, occupational
therapy, and other special
instruction.
De Mora was not
satisfied with the IFSP, and demanded that Bucks County
amend it to include additional
therapeutic services. She expressed a
preference for the Lovaas methodology of early intervention
training.
When the county
declined to incorporate additional therapy or a
Lovaas-based program, De Mora
hired Patricia Laudon, an experienced
Lovaas therapist, to
provide home-based therapy.
Since Laudon's time
was limited and De Mora was unable to find another
therapist, she asked Laudon to
train her in the Lovaas methodology.
The Lovaas method was
developed by Dr. O. Ivar Lovaas, and is based on 30
years of clinical experience and
research. Rather than take the
traditional view that autism is a
permanent condition manifested by a range
of symptoms,
Lovaas practitioners see autism as a treatable condition,
in which a child possesses a series of
behavioral deficits and excesses.
The method employs
the principle of "operant conditioning" to both educate
autistic children and modify their
behavior, bringing the deficits and
excesses more in line with what would be considered
normal social and intellectual
functioning for the child's age.
Research has shown
that the Lovaas method produces the best results when
it is undertaken intensively,
on a full-time basis. Treatment should
begin as early as possible, preferably
before the child turns 5 and ideally
before the child is 3 1/2 years old,
in order to prevent inappropriate behaviors
becoming too rooted in the
child's daily routine.
Ideally, a child
should spend about 40 hours a week with a trained
instructors in sessions of two to three
hours at a time, with breaks
throughout the session. Practitioners suggest that there should
be a team of
three to five therapists, in addition to the parents of
the child, who should spend six to 10
hours a week each with the child, in
addition to meeting weekly or biweekly
for one to two hours to discuss the child's
progress.
In the sessions,
therapists teach the child to perform initially simple,
and gradually more complex,
tasks at a table, using the discrete
trial technique. Large goals and
complex skills are broken down into achievable
tasks, and an emphasis is placed on positive
reinforcement being given, in the form
of activities or treats the child
likes, such as sweets or time to
play with a particularly favored toy.
One key aspect of the
Lovaas method is that negative behavior is never
punished. Tantrums receive neither
positive nor negative reinforcement,
but instead are expected to
decrease or disappear as more appropriate
behaviors are learned.
After Bucks County
refused to amend the IFSP to include Lovaas therapy, De
Mora commenced administrative
proceedings against the county.
The county won in the
first round when hearing officer David Lee found
that the county's IFSP was
appropriate.
But on appeal, the
Pennsylvania Commonwealth Court reversed the hearing
officer's finding and remanded
the case with instructions to reimburse De
Mora for her expenses in providing I.D. with private
Lovaas training for
the two-month period ending in
December 1999.
On remand, the
hearing officer calculated De Mora's expenses to be
$10,362, consisting of $3,520
to reimburse her for Laudon's 88 hours
of consultation,
training and direct implementation, and $6,842 to
reimburse De Mora for her
own time "directly related to the Lovaas-based program."
The hearing officer
found that De Mora had provided the "training herself
instead of paying a provider" and
determined the amount of the award by
multiplying the 311 hours she expended by a rate of $22
per hour.
Lawyers for Bucks
County then filed suit in U.S. District Court solely to
challenge the hearing officer's $6,842
award to reimburse De Mora for her
own time.
Now Schiller has
granted summary judgment in De Mora's favor, finding that
the award was perfectly sound
under IDEA and existing case law.
Although no court
within the 3rd Circuit has ever approved such an award,
Schiller found that in Hurry v.
Jones, the 1st U.S. Circuit Court of
Appeals upheld reimbursement to the
father of a quadriplegic student with
mental retardation who needed special
transportation to and from school.
"Because the school
district was unable to provide this transportation,
the student's father drove his
son to school. The First Circuit found
that the student's father was entitled
not only to reimbursement for his
out-of-pocket expenses, but to
reimbursement for his own time and effort
as well," Schiller wrote.
Bucks County's
lawyer, Robert O. Baldi, argued that public policy
considerations called for reversal of the
award because parents are an
important component of any early intervention program.
Schiller disagreed,
saying "even if Bucks County is correct on this point,
it overlooks the fact that Ms. De
Mora, in providing the Lovaas training,
acted well beyond the parental role."
Baldo also argued
that De Mora was not entitled to reimbursement for her
own time because she was not
properly qualified to provide early intervention
services -- a requirement, he said, imposed by federal
regulations.
But Judge Schiller
said, "I disagree with Bucks County's contention that
these regulations bar reimbursement
to Ms. De Mora. First, Supreme Court
precedent suggests that parents should not be constrained
to looking to
state-sanctioned services when a state or local
government fails to meet the
IDEA's requirements.
"Second, Bucks
County's certification argument cannot be squared with its
position with respect to Ms.
Laudon," Schiller wrote.
Laudon also had no
certification or professional licenses, Schiller noted,
but the county never appealed the
award for reimbursement of the money
paid to her.
Schiller said he also
rejected the county's suggestion that in order to be
entitled to reimbursement, De Mora
must have obtained certification from a
national organization, the Association of Behavioral
Analysts.
"Requiring Ms. De
Mora to complete graduate-level coursework and pass
examinations -- during the few
months I.D. remained eligible for early
intervention services -- would have been unduly
burdensome, if not contrary
to I.D.'s best interests," Schiller wrote.
