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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.

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