Bucks County Department of Mental Health/mental Retardation v. Commonwealth of Pennsylvania, Department of Public Welfare

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
_______________
No: 02-3919
BUCKS COUNTY DEPARTMENT OF
MENTAL
HEALTH/MENTAL RETARDATION,
Appellant
v.
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF PUBLIC
WELFARE;
BARBARA DEMORA
_______________
Appeal from the United States District
Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 01-cv-03254 )
District Judge: Berle M. Schiller
_______________
Argued October 15, 2003
Before: SLOVITER, ROTH and
STAPLETON, Circuit Judges
(Opinion filed August 18, 2004)
Robert O. Baldi, Esquire (Argued)
123 West Bridge Street
New Hope, PA 18938
Counsel for Appellant
Doris M. Leisch, Esquire (Argued)
Commonwealth of Pennsylvania
Department of Public Welfare, Room 302
1400 Spring Garden Street
State Office Building
Philadelphia, PA 19130
Daniel M. Fellin, Esquire
Commonwealth of Pennsylvania
Office of Legal Counsel
Department of Public W elfare,
3rd Floor West
Health & Welfare Building
7th & Forster Streets
Harrisburg, PA 17120
Amicus-Comm. Of PA
Gary S. Mayerson, Esquire (Argued)
Mayerson & Associates
250 West 57th Street, Suite 624
New York, NY 10107
Counsel for Appellees
OPINION OF THE COURT
ROTH, Circuit Judge:
This case arises under the

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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 fina ncial
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.
D e p a r t m e n t o f E d u c a t i o n o f
Massachusetts, 471 U.S. 359, 374 (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,
w a s d i a g n o s e d w i t h p e r v a s i v e
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
1 The parties agreed to refer to de
Mora’s daughter as I.D.

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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 M ora 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 M ora 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. w as
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
b e s t p r o g r a m a n d / o r
methodology. It may be
argued that I.D.’s progress
under the County services
was not good enough when
c o m p a r e d t o o r i n
conjunction with another.
The County, however, does
2 Lovaas training is a type of
discrete trial training where lesson
formats and behavioral reinforcements
are used to teach specific skills.

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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 M ora 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.
O n r e m a n d f r o m t h e
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
3 The $3,520 award represents 88
hours Laudon spent training I.D. from
October 8, 1999, to December 14, 1999.
The $6,842 award represents 311 hours
de Mora spent training I.D. during the
same time period. Laudon and de Mora
continued training I.D. through April 10,
2000, the date on which I.D. lost
eligibility for early intervention services.
However, the Commonwealth Court of
Pennsylvania limited the Hearing
Officer’s consideration of reimbursement
to the number of hours Laudon and de
Mora spent from October 8, 1999, to
December 14, 1999, because the
pleading only addressed this period of
time. De M ora v. Dep’t of Pub. Welfare,
768 A.2d 904, 908 n.16.

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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 th e
ordinary is that Mrs. de
Mora provided the training
herself instead of paying a
provider from outside the
home.
. . .
Equitable cons ideratio n
would indicate that there
should be a recompense for
the expenditure of time by
Mrs. de Mora in providing
I.D. with what 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
i n c urred the co st o f
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.
Buck s 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. § 1439(a)(1) of the
appeal from the Hearing Officer’s
decision. We have jurisdiction of the
appeal from the District Court’s decision
pursuant to 28 U.S.C. § 1291.
On review of a district court’s
decision on a motion for summary
judgment, we exercise plenary review, and
we are required to apply the same test the
district court should have used initially.
S.H. v. State-Operated Sch. Dist. of
Newark, 336 F.3d 260, 269 (3d Cir. 2003).
Under IDEA, the District Court,
acting as a reviewing court:

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shall receive the records of
t h e a d m i n i s t r a t i v e
proceedings, shall hear
additional evidence at the
request of a party, and,
basing its decision on the
p repond eran c e of th e
evidence, shall grant such
r e l i e f a s t h e c o u r t
determines is appropriate.
20 U.S.C. § 1439(a)(1). Accordingly, the
traditional standard fo r review ing
summary judgments is not applicable. As
to findings of fact, the proper standard of
review for the District Court, and this
Court, is “modified de novo.” S.H., 336
F.3d at 270. Under this approach,
reviewing courts are “required to defer to
the . . . [hearing officer’s] factual findings
unless . . . [they] can point to contrary
nontestimonial extrinsic evidence on the
record,” id., or “unless the record read in
its entirety would compel a contrary
conclusion.” Id. (quoting Carlisle Area
Sch. v. Scott P., 62 F.3d 520, 529 (3d Cir.
1995). If the reviewing court receives
additional evidence, it is “free to accept or
reject the agency findings depending on
whether those findings are supported by
the new, expanded record.” Id. (quoting
Oberti v. Bd. of Educ. of the Clementon
Sch. Dist., 995 F.2d 1204, 1220 (3d Cir.
1993)). If the reviewing court does not
receive additional evidence, “it must find
support for any factual conclusions
contrary” to the hearing officer’s and
“must explain why it does not accept the .
. . findings of fact to avoid the impression
that it is substituting its own notions of
sound . . . policy for those of the agency it
reviews.” Id. As for the legal standards
applied by the District Court, our review is
plenary. Id.
IV. DISCUSSION
A . S t a t u t o r y a n d R e g u l a t o r y
Framework
Under Part C of IDEA, the federal
government provides financial assistance
to the states when the states “develop and
implement a comprehensive, coordinated,
multidisciplinary, interagency system that
provides early intervention services for
infants and toddlers with disabilities and
their families.” 20 U.S.C. § 1431(b)(1).
Under Part C, infants and toddlers with
disabilities, up to age three, are entitled to
early intervention services provided at no
cost and designe d to m eet the
developmental needs of the children. See
id. § 1432(4)(B), (C). The services are
provided by “qualified personnel,” id. §
1432(4)(F), and include, inter alia, family
trainin g and c oun seling, s pecia l
instruction, occupational therapy, physical
therapy, psychological services, and social
work services. See id. § 1432(4)(E). All
services, “to the maximum extent
appropriate, are provided in natural
environments,” including the child’s home
and other settings where children without
disabilities interact. See id. § 1432(4)(G).
All services must be provided in
accordance with an IFSP. See id. §
1432(4)(H). Under Part C, the IFSP is
developed with the cooperation and

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consent of the family, with an eye toward
the “resources, priorities, and concerns of
the family.” See id. § 1436(a)(2). The
IFSP contains a statement of the child’s
present levels of development, goals to be
achieved for the child and the child’s
family, and the services necessary to meet
the stated goals. See id. § 1436(d).
Regulations mandate review of the IFSP at
least every six months to determine how
much progress has been made toward
meeting the stated goals and whether any
changes to the plan are necessary. See id.
§ 1436(b); 34 C.F.R. § 303.342.
Congress envisioned that the
cooperative process of developing,
reviewing, and modifying IFSPs would
lead to disagreements between parents and
the local agency in charge of administering
the program. It is easy to foresee that
conflicts will arise when parents and local
agencies have different perspectives on
what services are best for the child. To
protect the family’s right to early
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
IDEA. 20 U.S.C. §§ 1415, 1439. These
safeguards give the parents “[t]he
opportunity . . . to examine records relating
to assessment, screening, eligibility
determinations, and the development and
implementation of the . . . [IFSP]” and
mandate “[w]ritten prior notice to the
parents . . . whenever the State agency or
service provider proposes to initiate or
change or refuses to initiate or change . . .
the provision of appropriate early
intervention services.” See id. §
1439(a)(4), (6). IDEA also entitles the
parents to an impartial due process
hearing. See id. § 1415(f).
In addition to these procedural
safeguards, Congress incorporated into
IDEA a broad provision for judicial
review:
Any party aggrieved by the
findings and decisio n
regarding an administrative
complaint shall have the
right to bring a civil action
w i t h r e s p e c t t o t h e
complaint in any State court
of competent jurisdiction or
in a district court of the
United States without regard
t o t h e a m o u n t i n
controversy.
See id. § 1439(a)(1). On judicial review of
a hearing officer’s decision, the court
“shall grant such relief as the court
determines is appropriate.” Id.
B.Reimbursing parents for the cost of
private replacement therapy is an
“appropriate” remedy for IDEA
violations.
The Supreme Court in School
Committee of the Town of Burlington,
Massachusetts v. Department of Education
of Massachusetts, interpreted IDEA’s
provision mandating reviewing courts to
grant “appropriate” relief as conferring
broad discretion on those courts, and stated
that “the only possible interpretation is that

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the relief is to be ‘appropriate’ in light of
the purpose of the Act.” 471 U.S. 359,
370 (1985).4 The Court in Burlington held
that reimbursing parents for expenses
incurred from placing their child in private
school is “appropriate” relief when a court
has found that the public school placement
was inappropriate and that the parents’
private placement was appropriate. Id.
We also have broadly interpreted
the term “appropriate.” In W.B. v. Matula,
we “discern[ed] nothing in the text or
history suggesting that relief under IDEA
is limited in any way, and certainly no
‘clear direction’ to rebut the presumption
that all relief is available.” 67 F.3d 484,
494 (3d Cir. 1995). We also
c a u t i o n [ e d ] t h a t i n
fashioning a remedy for an
IDEA violation, a district
court may wish to order
educational services, such as
comp ensatory education
beyond a child’s age of
eligibility, or reimbursement
for providing at private
expense what should have
been offered by the school,
rather than compensatory
damages for generalized
pain and suffering.
Id. at 495.
Here, the Commonwealth Court of
Pennsylvania determined that the IFSP
was not “appropriate” because I.D. was
not making meaningful progress toward
her IFSP goals. The court also determined
that the private training was appropriate.
De Mora v. Dep’t of Pub. Welfare, 768
A.2d at 908. Bucks County never
appealed these findings.
Because the Commonwealth Court
determined that the privately delivered
services were appropriate and because
Bucks County’s denial of these services
made the IFSP inappropriate and
constituted a violation of IDEA, under
Burlington and under our own precedent,
de Mora is entitled to reimbursement for
the privately delivered services. Bucks
County does not appeal the Hearing
Officer’s reimbursement award for the
costs de Mora incurred from hiring
Laudon, however. It challenges the
reimbursement award for the time de Mora
4 In Burlington, the Court
interpreted the remedial provision under
Part B of the Education of the
Handicapped Act, IDEA’s predecessor,
which grants eligible children the right to
“free appropriate education.” 20 U.S.C.
§ 1415(a). While Part C of IDEA
provides services to infants and toddlers,
up to age three, in accordance with an
IFSP, Part B provides special education
services to children from age three to
twenty in accordance with an
individualized education plan (IEP). The
remedial provisions under Part B and
Part C are, however, identical. Compare
20 U.S.C. § 1415(i)(2)(B) with 20 U.S.C.
§ 1439(a)(1) (both stating that the court
“shall grant such relief as the court
determines is appropriate.”).

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personally spent with I.D. That question is
an issue of first impression for this Court.
C.Under Burlington, paying de Mora
for her time would constitute
reimbursement, not damages.
The Pennsylvania Department of
Public Welfare filed a brief as Amicus
Curiae. The Department argues that
paying de Mora for her time would not be
“appropriate” relief because she never
incurred any out-of-pocket expenses by
providing services to I.D. herself. The
Department contends further that paying
de Mora for the time she personally spent
would constitute a damages award, and
damages are not recoverable under IDEA.5
Because paying de Mora for her
time constitutes reimbursement and not
damages, we do not need to decide today
whether monetary damages may be
recovered in an action brought under
IDEA. In Burlington, the Supreme Court
a d d r e s s e d t h e s a m e
r e i m b u r se m e n t / d a m a g e s argum e n t,
rejected it, and defined reimbursement:
Reimbursement merely
requires the Town to
belatedly pay expenses that
it should have paid all along
and would have borne in the
f i r s t in stance had it
developed a proper IEP.
471 U.S. at 370-371. A damages award on
the other hand is recompense for
“generalized pain and suffering.” Matula,
67 F.3d at 495; see also Polera v. Bd. of
Educ. of the Newburgh Enlarged City Sch.
Dist., 288 F.3d 478 (2d Cir. 2002) (noting
that a damages award “is redress for a
broad range of harms associated with
personal injury, such as pain and suffering,
emotional distress, harm to reputation, or
other consequential damages.”).
De Mora is not seeking recompense
for her or I.D.’s pain and suffering, mental
anguish or other “damages” as a
5 The Department cites Matula
for the proposition that damages are not
recoverable in an action brought under
IDEA. In Matula, we allowed the
awarding of monetary damages in an
action brought under 42 U.S.C. § 1983 in
which the plaintiff asserted a violation of
IDEA. 67 F.3d at 495. The Department
argues that damages are not allowed here
because this is not a § 1983 action.
We have not settled whether
damages are recoverable in an action
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,
we discern nothing in the text or history
suggesting that relief under IDEA is
limited in any way.”); see also Polera v.
Bd. of Educ. of the Newburgh Enlarged
City Sch. Dist., 288 F.3d 478, 485 (2d
Cir. 2002) (noting that in Matula we
“addressed the issue without endorsing
the view that damages are never
available under the IDEA.”).

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consequence of Bucks County’s violation
of IDEA. Reimbursement involves a “post
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
responsibility,” Burlington, 471 U.S. at
371, and if Bucks County had provided the
Lovaas training to I.D. as de M ora
requested, it would have borne the full
expense of the therapy. In fact, as a result
of the “post hoc determination of financial
responsibility” in this case, Bucks County
will actually be paying less than the cost it
would have borne had it met its burden of
providing the services in the first instance.6
It is true that the typical
reimbursement cases involve reimbursing
actual out-of-pocket expenses. See e.g.,
Burlington, 471 U.S. 359 (cost of private
education); Florence County Sch. Dist.
Four v. Carter, 510 U.S. 7 (1993) (cost of
private education); Adams v. Oregon, 195
F.3d 1141 (9th Cir. 1999) (cost of private
therapy). However, “appropriate” should
not be read so narrowly so as to preclude
de Mora from being paid for her time just
because she did not write a check to a third
party. If we limited reimbursement to
actual out-of-pocket expenses, we would
g i v e a n a r r o w c o n st r u c ti o n to
“appropriate,” and this would be contrary
to both the Supreme Court’s broad
interpretation of the term in Burlington
and our own broad interpretation in
Matula.
Reimbursing parents for the time
and services necessary for their child,
when there has been an IDEA violation, is
not unheard of. The First Circuit in Hurry
v. Jones, 734 F.2d 879 (1984) held that in
f a s h i o n in g “ a p p r o p r ia t e ” re l i ef ,
reimbursement should not be limited to
out-of-pocket expenses. In Hurry, the
school’s failure to provide door-to-door
transportation violated the Education of
t h e H a n d i c a p p e d A c t ( ID E A ’ s
predecessor). The main issue was whether
the parents were entitled to reimbursement
for driving their child to and from school.
Id. at 883-84. The court noted that it held
an “expansive view of reimbursement” and
concluded that the father was entitled not
only to reimbursement for the weekly
transportation costs he incurred, but also to
“compensation for the expenditure of time
and effort” for delivering the services that
the state should have provided. Id. at 884;
see also Barnesville Exempted Village
Sch. Dist., 26 IDELR 1168, (LRP) No. 97-
1 (June 30, 1997) (mother entitled to
reimbursement for time she spent home-
schooling her son); cf. Straube v. Florida
Union Free Sch. Dist., 801 F.Supp. 1164,
1182 (S.D.N.Y. 1992) (distinguishing
Hurry and holding that a father was not
entitled to compensation for time spent
6 If Laudon had provided all 399
hours of Lovaas training from October 8,
1999 to December 14, 1999, Bucks
County would have had to pay a rate of
$40/hour for a total cost of $15,960.
Instead, Laudon provided 88 hours of
training and de Mora provided 311
hours. The Hearing Officer ordered
reimbursement for Laudon’s time at a
rate of $40/hour and de Mora’s time at a
rate of $22/hour for a total cost of
$10,362. Accordingly, Buck County is
saving $5,598.

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raising money to send his son to private
school because his time was not spent on
delivering the services but on raising
money). The only danger that the Hurry
court recognized in allowing this type of
reimbursement was the potential for
excessive reimbursement. Hurry, 734 F.2d
at 884.
D. Under Florence County, the Hearing
Officer awarded a “reasonable level of
reimbursement” to de Mora for her
time.
The Supreme Court in Florence
County cautioned that reimbursement
would not be “appropriate” if the cost of
the private replacement is unreasonable.
510 U.S. 7, 16 (1993). The Court noted
that “[c]ourts fashioning discretionary
equitable relief under IDEA must consider
all relevant factors, including the
appropriate and reasonable level of
reimbursement that should be required.”
Id.; accord Adams v. Oregon, 195 F.3d
1141, 1151 (9th Cir. 1999) (Parents “are
entitled to reimbursement if their private
placement and tutoring . . . was
appropriate and reasonable.”).
The Department argues that the
amount the Hearing Officer awarded is not
a “reasonable level of reimbursement,” yet
it does not offer any explanation why the
amount is unreasonable. In fact, the
amount that the Hearing Officer awarded
de Mora for her time is a “reasonable level
of reimbursement.” First, de Mora is
reimbursed for her time at $22/hour,
approximately half the rate that Laudon
charged. Second, the Hearing Officer
noted that “the hourly rate so submitted
[for de Mora] is within the range of the
cost of a teacher had the County employed
such for I.D.” June 3, 2001 Decision of
Hearing Officer at A54. We take note of
the Hearing Officer’s finding that $22 an
hour is within the range of the cost that
Bucks County would have had to pay and
conclude that the level of reimbursement
awarded is reasonable. We also conclude
that the total number of hours of Lovaas
training was not excessive. The Lovaas
program recommends a total of 40 hours
per week of training, and the combined
number of hours of training provided by de
Mora and Laudon amounted to 40 hours
per week. Therefore, reimbursing de Mora
for 40 hours of private therapy is
reasonable. See T.H. v. Bd. of Educ. of
Palatine Cmty. Consol. Sch. Dist., 55
F.Supp. 2d 830, 844-45 (N.D.Ill. 1999)
(reimbursement cost not excessive because
38-hour Lovaas program does not exceed
the range of appropriate treatment levels
recommended by experts).
Reimbursement for De Mora’s time
at the rate of $22 an hour is “well within
any reasonable estimate of fair
reimbursement.” Hurry, 734 F.2d at 884.
Moreover, as we indicated above, if
Laudon had provided all of the hours of
training, Bucks County would have to
make reimbursement at a higher level.
E.De Mora is entitled to reimbursement
even though she does not fit IDEA’s
definition of “qualified personnel.”

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12
Bucks County argues that
reimbursing de Mora would not be
“appropriate” because she is not “qualified
personnel.” Bucks County is correct in
asserting that de Mora is not “qualified
personnel” as defined by IDEA and its
regulations.7 She does not have a formal
education in behavioral science and does
not hold a license or certification to
practice in the field.
There is support, however, from the
Supreme Court for the proposition that
although the state is required to use
“qualified personnel” when the state is
providing the services, parents are not
required to find a replacement who meets
the definition of “qualified personnel”
when the state fails to provide appropriate
services and there is an IDEA violation.
Florence County, 510 U.S. at 14. In
Florence County, the Supreme Court held
t h a t p a r e n t s w e r e e n ti t le d t o
reimbursement for private education
expenses even though the private school
did not meet state standards. The Court
reasoned that if parents were required to
place their children in schools that do meet
the state’s requirements, it would eliminate
their right to withdraw their child from the
inappropriate placement and the child’s
right to an appropriate education. Id. at
14.
Similarly, the requirement that
“qualified personnel” deliver the services
under Part B of IDEA does not make sense
in the context of choosing substitutions for
therapy. De Mora’s rejection of the
existing IFSP, and Bucks County’s failure
to modify the plan to conform to her
wishes, are the reasons she decided to look
for a private therapist. It would be
inconsistent with IDEA’s goals to forbid
parents from using a replacement to
provide appropriate early intervention
services “‘simply because that . . . [person]
lacks the stamp of approval of the same . .
. system that failed to meet the child’s
needs in the first place.’” Id. at 14 (citing
7 The IDEA defines “qualified
personnel” as
(i) special educators;
(ii) speech-language
pathologists and
audiologists;
(iii) occupational
therapists;
(iv) physical therapists;
(v) psychologists;
(vi) social workers;
(vii) nurses;
(viii) nutritionists;
(ix) family therapists;
(x) orientation and mobility
specialists; and
(xi) pediatricians and other
physicians.
20 U.S.C. § 1432(4)(F); see also 34
C.F.R.§ 303.12(e) (containing a similar
list of professions). “Qualified” is
defined in the regulations as “a person
[who] has met State approved or
recognized certification, licensing,
registration, or other comparable
requirements that apply to the area in
which the person is providing early
intervention services.” 34 C.F.R. §
303.22.

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13
Carter v. Florence County Sch. Dist. Four,
950 F.2d 156, 164 (4th Cir. 1991)).8
F.De Mora should be reimbursed
because she acted as a service provider
and provided therapy to I.D.
We now reach the crucial question
in this appeal. Can de Mora, as a parent,
be reimbursed for providing the Lovaas
training to I.D. Bucks County and the
Department argue that reimbursing de
Mora would be compensating her for
doing exactly what Congress intended
parents to do, i.e., actively participate in
the provision of the early intervention
services. They argue that while Congress
intended parents to be actively involved,
C o n g r e s s d i d n o t c o n t em p l a t e
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
participation. Congress did indeed
contemplate parental involvement and
participation in the provision of early
intervention services. The E arly
Intervention Program is directed at
meeting the needs of eligible children and
the needs of families “related to enhancing
the child’s development.” 34 C.F.R. §
303.12; accord 34 C.F.R. § 303.11 Under
IDEA, early intervention services include
family training and counseling. The state
8 Bucks County also argues that
Laudon was not qualified to train de
Mora and that Laudon and de Mora did
not implement a professional discrete
trial program. Bucks County asserts that
Laudon did not develop a written
curriculum to document the program and
that neither Laudon nor de Mora kept
daily logs or records covering I.D.’s
success.
First, by challenging de M ora’s
qualifications as well as Laudon’s and de
Mora’s alleged failure to develop a
written curriculum and document I.D.’s
success, Bucks County is really
challenging the appropriateness of the
private training that Laudon and de M ora
provided. However, the
inappropriateness of the IFSP and the
appropriateness of the private therapy
has already been adjudicated by the
Commonwealth Court, and Bucks
County did not appeal those findings.
Second, as the District Court
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
square with its position with respect to
Laudon. Bucks County Dep’t of Mental
Health/Mental Retardation, 227 F.Supp.
2d at 430. According to Bucks County,
Laudon did not document I.D.’s success
during the time that she and de Mora
were using the new program. Bucks
County challenges the reimbursement
award to de Mora for her time on that
ground, yet it did not challenge the award
with respect to Laudon. In addition,
Bucks County blames de Mora for not
integrating the Lovaas-based therapy into
the IFSP. It was de Mora, however, who
wanted in the first place to integrate as
program into the IFSP. Bucks County
turned her away.

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14
must provide “a family-directed
assessment of the resources, priorities, and
concerns of the family and the
identification of the support and services
necessary to enhance the family’s capacity
to meet the developmental needs of the
infant or toddler.” 20 U.S.C. §§
1436(a)(2), 1432(4)(E); 34 C.F.R. §
303.12(c)(2). The parents are expected to
participate in the development of the IFSP,
and “[t]he contents of the . . . [IFSP] shall
be fully explained to the parents and
informed written consent from the parent
shall be obtained prior to the provision of
early intervention services.” 20 U.S.C. §
1436(a)(3), (e); 34 C.F.R. § 303.12(a)(2).
Although Congress envisioned
parental involvement, however, Congress
primarily contemplated that Bucks County
would provide the early intervention
services to I.D. and her family at no cost
and that de Mora and her family would not
have to resort to providing those services
or paying for them. The level of parental
involvement that Congress intended when
a state meets its burden of providing
appropriate early intervention services is
entirely separate from what Congress
intended as a remedy when a state fails to
meet that burden. Congress contemplated
a broad remedy when it gave reviewing
cour ts the disc retion to a w a r d
“appropriate” relief. “Congress expressly
contemplated that the courts would fashion
remedies not specifically enumerated in
IDEA.” Matula, 67 F.3d. at 494-95.
There is another compelling reason
for our conclusion that Congress intended
the remedy sought by de Mora in the
specific context of this case. Burlington
held that, in order to satisfy Congress’
intent that the services provided under
IDEA be free, parents are entitled to seek
retroactive reimbursement for providing
appropriate replacement services where
the state has failed to meet is obligations.
We have recognized, however, that not all
paren ts are capa ble of obtain ing
appropriate replacement services. See
Lester H. v. Gilhool, 916 F.2d 865, 872-73
(3d Cir. 1990). In Lester H., a case arising
under Part B, we held that “Congress, by
allowing the courts to fashion an
appropriate remedy to cure the deprivation
of a child’s right to a free appropriate
public education, did not intend to offer a
remedy only to those parents able to afford
an alternative private education.” Id. at
873. We therefore concluded that an
“appropriate” remedy encompasses the
power of a court to order school authorities
to provide compensatory education to a
child, even beyond the child’s age of
eligibility for such services under Part B.
In this case, de Mora was certainly
able to afford appropriate replacement
services for I.D., but could not find anyone
to provide those services. She was
consequently faced with precisely the same
dilemma as the parents in Lester H.: the
state was not providing appropriate
services and she was unable to obtain
replacement services. Consistent with our
holding in Lester H., we must accept the
proposition that de Mora is entitled to
some type of remedy that is consistent with
the purposes of Part C of IDEA. Because
of significant differences between Part B

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15
and Part C, however, the compensatory
remedy that was available in Lester H.
would be ineffective and insufficient for
correcting Bucks County’s violation in this
case.
First, whereas a compensatory
remedy may be effective under Part B
because it allows disabled children to
receive free services beyond their age of
eligibility, such a remedy provides no
benefit under Part C because disabled
infants and toddlers become immediately
eligible for Part B services upon reaching
age three.
Second, and more significantly,
Congress could not have intended that de
Mora expend valuable time litigating the
appropriateness of I.D.’s IFSP in order to
thereafter obtain a compensatory remedy.
This is because Part C evidences a
recognition that the timely provision of
appropriate services to disabled infants and
toddlers between birth and age three is
crucial for their development. In enacting
Part C, Congress recognized that these
beneficiaries in particular “would be at
risk of having substantial developmental
delay if they d[o] not receive early
intervention services.” 20 U.S.C. §
1431(b)(4). The House Committee on
Education and Labor sp ecif ically
acknowledged this problem when it stated
that “[i]t is also the Committee’s intent
that the procedures developed by the State
result in speedy resolution of complaints
because an infant’s development is rapid
and therefore undue delay could be
potentially harmful.” H. R. Rep. No. 99-
860, at 14 (1986), reprinted in 1986
U.S.C.C.A.N. 2401, 2415. By providing
early intervention services during these
crucial first three years of a disabled
child’s life, Congress sought “to minimize
their potential for developmental delay,”
20 U.S.C. § 1431(a)(1), and “to reduce the
educational costs to our society . . . by
minimizing the need for special education
and related services after infants and
toddlers with disabilities reach school
age.” Id. § 1431(a)(2).
Given the high aspirations that
Congress intended for Part C services, and
the quite brief amount of time allotted to
achieve those aspirations, we are
convinced that, faced with the choices of:
(1) capitulating to Bucks County’s
provision o f inapprop riate early
intervention services to I.D., (2) expending
the time necessary to seek a compensatory
remedy, or (3) getting trained to provide
appropriate services to I.D. herself,
providing such services, and thereafter
c o m m e n c i n g l i ti g a t io n t o s e ek
reimbursement for her efforts, Congress
intended de Mora both to have, and to
exercise, the third option. This third
option seems especially appropriate in the
case at hand, where de Mora was able to
acquire the necessary Lovaas training and
transition into the role of service-provider
seam lessly w ithout any resultant
interruption or delay in I.D.’s program.
We do not presume that a parent will be
able, or willing, to exercise this option in
every case, but where he or she does,
reimbursement for the reasonable value of
those efforts is con sistent w ith
Congressional intent to provide an

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16
“appropriate” remedy.
Bucks County’s argument about
parental involvement would be more
convincing if in fact de Mora had merely
been acting as an involved parent. There
is, however, ample evidence in the record
to support the conclusion that de Mora
stepped into the shoes of a therapist,
ultimately acting over and above what is
expected of parents under IDEA. The
Hearing Officer made a finding that de
Mora was herself a trial training provider:
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.
June 3, 2001 Decision of Hearing Officer
at A52-53. The District Court agreed and
found that “Mrs. de Mora, in providing the
Lovaas training, acted well beyond the
parental role contemplated under Part C.”
Bucks Cou nty Dep’t of M enta l
Health/Mental Retardation v. De M ora,
227 F.Supp. 2d at 429. The District Court
was required to defer to this finding unless
it could point to contrary nontestimonial
extrinsic evidence. S.H., 336 F.3d at 270.
There is no contrary nontestimonial
extrinsic evidence that the District Court
could have relied on to make a different
finding. A reading of the entire record
does not compel a different finding.
Furthermore, the additional evidence the
District Court received, in the form of
depositions and affidavits, supports the
Hearing Officer’s findings.
Laudon trained de Mora by
engaging in one-on-one workshops where
de Mora would act as the implementer of
the Lovaas curriculum and Laudon would
coach her. The implementer is the
therapist who works one-on-one with the
child in a controlled environment to help
the child master certain tasks. The parent
is usually referred to as a generalizer
because the parent generalizes the skills
learned in therapy into the home
environment. For example, in therapy, the
implementer and the child may be working
on matching objects to pictures. During
implementation, the child would repeat the
task until the child performed it correctly.
During generalization, the parent may ask
the child to match an object to a picture
while they are in the kitchen getting ready
for dinner. During the generalization
process, the parent does not teach the child
how to master new tasks but reinforces the
training initiated by the implementer.
This workshop method is the same
method by which Laudon was trained and
which Laudon used to train other
implementers. De M ora read and learned
discrete trial training teaching guidelines
and other books on the Lovaas
methodology. It is evident from her
deposition that she is very familiar with
the guidelines. She also spent many hours
watching Laudon act as an implementer
and talking to Laudon on the phone. Lisa

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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.
The evidence here supports the
conclusion that de Mora acted not only as
a generalizer but also as an implementer.
De M ora is familiar with the discrete trial
training techniques. When questioned, de
Mora was able to give concrete examples
of how she worked with I.D. as an
implementer to master certain tasks. She
testified that she was very learned in the
teaching guidelines, and noted the
importance of strict adherence to the
guidelines in order to achieve positive
results. Finally, the affidavits from four
other therapists who were present in the
home with de Mora and observed de Mora
perform the Lovaas training confirm that
De Mora was acting as a therapist, not as a
mother, when she was working with I.D.9
9 The Department of Public
Welfare correctly points out that Part C
of IDEA, which governs early
intervention services for infants and
toddlers, includes parents and children in
service delivery, whereas Part B, which
governs special education services for
school-age children, includes only
children in service delivery. This
difference, they assert, strengthens their
argument that the time de Mora spent
with I.D. was time for which Congress
intended her to spend and not be
compensated.
This argument overlooks the
crucial finding that, as we discussed, de
Mora not only acted as a parent, as
Congress intended, but also acted as a
service provider. Furthermore, this
argument overlooks the fact that parental
involvement is contemplated throughout
all of IDEA. While eligible children and
their families are the recipients of
services under Part C, 20 U.S.C. § 1433
(“provide early intervention services for
infants and toddlers with disabilities and
their families”), and children alone are
the recipients of services under Part B,
20 U.S.C. § 1411 (“provide special
education and related services to children
with disabilities”), this does not mean
that Congress envisioned parental
involvement to differ as soon as a child
turns three years old, becomes eligible
for special education services, and loses
eligibility for early intervention services.
As the Supreme Court noted in
Burlington, “[i]n several places, [Part B
of] the Act emphasizes the participation
of the parents in developing the child’s
educational program and assessing its
effectiveness.” 471 U.S. at 368; see also
20 U.S.C. §§ 1400(c), 1401(19), 1412(7),
1415(b)(1)(A), (C), (D), (E), 1415 (b)(2);
34 C.F.R. § 300.345 (1984).
The Department of Public Welfare
also argues that de Mora should not be
compensated because the Lovaas
program places emphasis on parental
involvement, and “Mrs. de Mora’s
involvement in her child’s programming
was entirely consistent with the parental
role expected by and, indeed, critical to
the success of . . . the Lovaas program in

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G.“Equitable considerations” favor
reimbursing de Mora.
The Department urges us to reverse
the District Court’s decision because
“[a]lthough intending to constrain the
effect of its decision, the district court
instead identified considerations that will
apply to virtually every successful
administrative challenge to an IFSP under
Part C.” To the extent the Department is
expressing a concern over the potential
financial burden on Bucks County, it is not
a viable one. Bucks County had the
opportunity, upon de Mora’s request, to
provide appropriate early intervention
services. If Bucks County had complied
with IDEA’s mandate, they “need not
worry about reimbursement claims.”
Florence County, 510 U.S. at 15.
Moreover, affirming the District
Court will not have as far reaching effects
as the Department of Public Welfare
imagines. Reimbursement under the
particular facts of this case will be limited
to situations where 1) there has been a
violation of IDEA and appropriate private
services were provided, see Burlington,
471 U.S. at 370, 2) the amount of the
reimbursement is reasonable, see Florence
County, 510 U.S. at 16, and 3) a trained
service provider was not available so that
the parent stepped in to act as the trained
service provider and not as a parent.
Finally, “equitable considerations
are relevant in fashioning relief.”
Burlington, 471 U.S. at 374. Bucks
County carries the burden of providing
appropriate early intervention services, but
Bucks County failed to meet this burden.
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
detriment, or she could have found
appropriate replacement services. She
opted to find someone to provide the
Lovaas training. However, she ran into yet
another obstacle -- the one person she did
find could not work the hours that I.D.
needed under the program to obtain better
results. De Mora could not find another
provider to work the remaining hours so
she chose to train in discrete trial
methodology and provide the therapy to
I.D. herself. She spent many hours in
training with Laudon and acted as an
implementer of discrete trial therapy. “It
would be an empty victory to have a court
tell . . . [de Mora] several years later that
particular.” It is true that the Lovaas
program, like IDEA, envisions parental
involvement. In particular, under the
Lovaas program, parents are supposed to
reinforce the skills that the children have
already learned from working with the
therapist. Parental involvement in this
capacity is designed with the aim of
generalizing skills the child learns into
unstructured daily activities. O. IVAR
LOVAAS ET AL., TEACHING INDIVIDUALS
WITH DEVELOPMENTAL DELAYS, 311 (Pro
Ed 2002) (see Chapter 32 titled
“Involving Parents in Treatment”). Like
IDEA, however, the Lovaas program
does not envision parents acting as
service providers, as de Mora did here.

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. . . [she] was right” but that she is not
entitled to reimbursement for the time she
spent providing therapy. Id. at 370. If that
were the case, the family’s right to
appropriate early intervention services at
no cost would be denied.
V. CONCLUSION
For the foregoing reasons, we will
affirm the District Court’s grant of
summary judgment in de Mora’s favor.
B U C K S C O U N T Y v .
COMMONWEALTH OF PA
No. 02-3919
SLOVITER, Circuit Judge, concurring.
I agree with much of the majority’s
opinion in this case, and see no reason to
repeat either the facts or the arguments of
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
paying Laudon for the services she
performed. Although Bucks County
suggests that Laudon was not a qualified
professional because she had no training or
experience in developing and imparting
the requisite knowledge of the Lovaas
program to others, Bucks County does not
challenge the administrative officer’s order
authorizing repayment for Laudon’s own
services. It does appeal, however, the
order of the District Court requiring it to
reimburse Mrs. de Mora for her services
delivered directly to her child.
The majority cites no statutory
provision or regulation authorizing such
payment. The majority agrees with Bucks
County that Mrs. de Mora does not fall
within the category of “qualified
personnel” as defined in the statute.
Instead, it bases its decision approving
reimbursement to the mother of the
d i s a b l e d c h i l d o n “ e q u i t a b l e
considerations.”
I am concerned that the majority
has set a precedent that opens a wide gap
between that w hich is prope rly
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
pains to limit the scope of its decision, and
in particular because of its conclusion that
“a trained service provider was not
available,” I join its judgment, albeit with
reservations.10
10 I am personally familiar with
Bucks County. It is not in the
wilderness. It borders the City of
Philadelphia, and is home to numerous
fine hospitals, medical centers and
professionals. However, I have no basis
to dispute the majority’s conclusion that
Mrs. de Mora could not find a qualified
professional. I have no personal
familiarity with the Lovaas program and
therefore do not know whether it is or is
not commonly available.

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