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A parent who prevails under Part C of the Individuals with Disabilities Education Act, which governs early intervention services for developmentally challenged infants and toddlers, is not entitled to attorney fees, U.S. District Judge Berle M. Schiller of the Eastern District of Pennsylvania has ruled. In a previous opinion under the same caption, Bucks County Department of Mental Health v. de Mora, Schiller determined that a parent who provided early intervention services for her developmentally disabled child should have been reimbursed for her efforts, even though she was not a certified professional. The Bucks County, Pa., Office of Mental Health and Mental Retardation responded to the subsequent request for attorney fees by arguing that no statutory authority justified such an award. Schiller agreed, noting that under the “American rule,” each party is required to pay its own attorney fees. Further, the judge said the U.S. Supreme Court has determined that attorney fees typically are not recoverable without explicit congressional authorization. Schiller’s opinion states that an amendment to the IDEA’s predecessor, the Education of the Handicapped Act, authorizing attorney fees in certain actions to secure the right to a free appropriate public education, does not apply to Part C of the IDEA. “In particular,” Schiller wrote, quoting Part B of the IDEA, “the statute, as amended, provides: ‘In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.’” However, by its express terms the amendment does not apply to all provisions of the IDEA. Instead, Schiller said, it is limited to the provision of free appropriate public education. Part C simply does not authorize an award of counsel fees, the opinion states. “Absent statutory authorization,” Schiller wrote, “I am precluded from awarding de Mora counsel fees.” But the judge did point out that Part C provides minimum procedural safeguards, which might allow an amendment to include the right to attorney fees in appropriate cases. “As de Mora argues, there are troubling public policy ramifications that flow from denying counsel fees to a litigant in her position,” Schiller wrote. “Nevertheless, constrained by the law, I am unable to award de Mora’s attorneys’ fees. Until such time as the law is amended, de Mora, and her counsel, can take some consolation in the result they achieved on the merits.” Barbara de Mora landed in federal court after her daughter was diagnosed with cerebral palsy and deafness. Additionally, the child was identified as having developmental delays during her infancy. This meant she was eligible for early intervention services. Bucks County developed an Individualized Family Service Plan that included physical therapy, speech therapy, occupational therapy and other special instruction. But de Mora wanted additional therapeutic services, particularly the Lovaas method of early intervention training, an operant conditioning program intended to instill desirable behaviors in the child. When the county did not provide Lovaas intervention, de Mora hired an experienced therapist trained in the method. But the therapist could not provide the time necessary for the intervention, so de Mora asked to be trained to do it by herself. De Mora also instituted administrative proceedings against Bucks County, eventually securing an award of $10,362 as reimbursement for the therapist’s consultation, training and direct implementation, and for de Mora’s own time related to the Lovaas-based program. Bucks County filed suit in U.S. District Court to challenge the reimbursement for de Mora’s time. De Mora won on summary judgment when Schiller found that she acted well beyond her parental role in implementing the Lovaas method.

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