                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-2007

M. v. Delaware Cty Ofc
Precedential or Non-Precedential: Precedential

Docket No. 06-1960




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                                         PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 06-1960


         ANDREW M.; DEIRDRE M.,
      ON THEIR OWN BEHALF AND ON
  BEHALF OF THEIR MINOR SONS; P. M.; R. M.

                          v.

  DELAWARE COUNTY OFFICE OF MENTAL
   HEALTH AND MENTAL RETARDATION;
DOROTHY KLEIN, IN HER OFFICIAL CAPACITY,

                         Appellants


   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
              (D.C. No. 05-cv-04336)
     Magistrate Judge: Honorable Jacob P. Hart


             Argued March 26, 2007
Before: FISHER, JORDAN and ROTH, Circuit Judges.

               (Filed: June 15, 2007 )
Barbara E. Ransom (Argued)
Public Interest Law Center
 of Philadelphia
125 South 9th Street, Suite 700
Philadelphia, PA 19107
       Attorney for Appellees

Susan McDonough (Argued)
Holsten & Associates
One Olive Street
Media, PA 19063
      Attorney for Appellants




                 OPINION OF THE COURT


FISHER, Circuit Judge.

        This case comes to us on appeal from the District Court’s
grant of summary judgment in favor of Andrew and Deirdre M.
(jointly the “Ms”). The District Court concluded that the
Delaware County Office of Mental Health and Mental
Retardation (“the County”) had violated Part C of the
Individuals with Disabilities Education Act (“IDEA”) and the
Rehabilitation Act (“RA”) by denying the Ms’ twin sons
services in their natural environment, and granted the Ms
compensatory education and attorney’s fees. The County
appealed, claiming that the Ms did not put forth evidence
proving that the services required under the IDEA were

                                2
discontinued for the period in question or that the services were
not provided in an appropriate environment, and that the Ms
failed to prove an RA violation. For the reasons set forth below,
we will affirm the District Court’s grant of summary judgment
on the IDEA claim and reverse its grant of summary judgment
on the RA claim.

                               I.

                               A.

        R.M. and P.M. are brothers and fraternal twins who were
born on November 10, 2000. The Ms are their parents. In 2002,
both twins were presenting with significant speech and
communication delays and functioning at levels significantly
below their peers. Based on these problems, the County
determined that they were eligible for Early Intervention (“EI”)
services in accordance with Part C of the IDEA, and assembled
a team to develop an Individualized Family Service Plan
(“IFSP”) for each boy. After it was determined that the speech
services the twins received were not effective in the home, the
IFSP team determined that services could better be rendered in
a classroom-based program as the boys needed social interaction
with peers and adults. Therefore, the team and the parents filled
out a “Justification for Center-Based Services” form, which
authorized the boys’ speech services to be provided at a center
for special-needs children run by the Cerebral Palsy Association




                               3
of Delaware County (“CADES”).1 Both parties agree that the
center is a segregated environment as it does not provide
services for children who are not disabled.

       As part of their IFSPs, both R.M. and P.M. used the
Picture Exchange Communication System (PECS). The PECS
provides a way for children with speech delays to communicate
through the use of icons. Both boys received year-round PECS
services. In March of 2003, Mrs. M. requested that the twins be
allowed to attend a two-week PECS summer camp. The request
was denied and the Ms sent the twins to the camp at their own
expense.

       In the meantime, on January 20, 2003, Mrs. M. requested
that the EI services which were currently provided at the
CADES center be provided in a “typical setting.” She told the
County that she had found a location, St. Faith’s, where the boys
could have a classroom setting that included involvement with
non-developmentally-delayed children. The County denied that
request, stating that Delaware County could not provide that
service as it did not have a contract to provide services at St.
Faith’s. Therefore, on January 22, 2003, the Ms enrolled the
twins at St. Faith’s at their own expense. While there is a
dispute as to whether the boys continued receiving certain EI
services somewhere other than St. Faith’s, the County agrees


       1
       Under Part C of the IDEA, if early intervention services
are provided outside the natural environment, an IFSP must
include a justification for such a change.          34 C.F.R.
§ 303.344(d)(ii).

                               4
that it did not provide EI services at St. Faith’s between January
and June 2003. The County’s records indicate that Mrs. M.
requested services at St. Faith’s on at least two other occasions,
April 30, 2003 and May 2, 2003. Eventually, the County sent
someone to observe the boys at St. Faith’s. Mindy Glassberg,
the boys’ primary PECS therapist, testified that she observed the
boys on April 28 and May 1, 2003, at Mrs. M.’s request. The
County’s records indicate that it sent someone from CADES to
observe the boys at St. Faith’s in late May 2003. On June 5,
2003, the County informed the Ms that the CADES observer
believed that two, hour-long units per month of speech services
would be appropriate at St. Faith’s. While Mrs. M. had been
hoping for more frequent services, she agreed to begin with the
two hours per month. Shortly thereafter, the boys began
receiving EI services at St. Faith’s.

        In July, 2003, the Ms requested that a new PECS
therapist replace Glassberg. The Ms claim that during the
transitional period between therapists that followed, P.M. and
R.M. were not provided the PECS services required by their
IFSPs. The County did not dispute that there were missing
PECS service hours.

                               B.

       Based on their disputes with the County over the twins’
EI services, the Ms brought two different due process claims
against the County. Initially, after the County denied Mrs. M.’s
request that it pay for her sons’ attendance at the PECS summer
camp, the Ms brought a due process claim against the County
seeking compensation for the boys’ attendance. After a three-

                                5
day hearing (on June 10, June 25, and July 10, 2003), the
Hearing Officer determined that, while attendance at the camp
might be beneficial for the boys, it was not necessary. The boys
were making appropriate progress under their IFSPs as written
without attendance at the camp. Because there was general
agreement between the Ms and the County that the IFSPs were
appropriate, and because there was no strong evidence
suggesting the boys were required to attend the camp, the
Hearing Officer denied the Ms’ claim for compensation for the
PECS summer camp.

       The Ms appealed the decision to the District Court for the
Eastern District of Pennsylvania.2 In addition to seeking
compensation for the twins’ attendance at summer camp, the Ms
also made a claim for the missing PECS service hours, which
had not been briefed before the Hearing Officer. The District
Court ruled that the County erred in failing to fund the camp for
P.M., but not for R.M. As to the missing service hours, the
District Court found that the Ms had not exhausted their
administrative remedies and, therefore, dismissed the claims
without prejudice so that the Ms could return for a decision at
the administrative level.

       In January 2005, the Ms returned to the administrative
level seeking compensatory education for the PECS hours that


       2
       By the consent of the parties, the case was transferred to
a magistrate judge, who was designated as the trial judge.
References in this opinion to the District Court indicate the
magistrate judge, sitting by designation.

                               6
were missed during the therapists’ transition and seeking relief
because the twins were not provided EI services in their “natural
environment” for the first five months they were at St. Faith’s.
The Ms also made a claim under the RA. All evidence and
additional briefing was to be submitted to the Hearing Officer
by May 24, 2005. The Ms submitted a brief on May 24 and
additional exhibits on May 28. The County did not submit any
information. Based on the evidence before her, the Hearing
Officer ruled as to each twin individually.

        The Hearing Officer made the following findings of fact.
She determined that both children suffered from developmental
delays that resulted in their approval for EI services under the
IDEA. Both children had speech services transferred to the
CADES center so as to receive services in a center-based
program. This was necessary because the CADES program
maximized interaction with peers and adults and provided a
structured environment in which to engage in activities with
other children and adults. After the twins began attending St.
Faith’s, the Ms expressed concerns that the boys were not
interacting at an appropriate level and requested that someone
from the County come observe the boys at St. Faith’s. “It took
at least two months for someone to observe [the twins] at St.
Faith’s.” As to the missing PECS hours, the Hearing Officer
determined that the County failed to provide approximately
nineteen hours of PECS services to R.M. and five hours of
PECS services to P.M.

       Based on these factual findings, the Hearing Officer
made the same legal determinations as to each boy (except for
finding that each was entitled to a different number of missing

                               7
PECS hours). The Hearing Officer first determined that there
was no dispute that the boys were deprived of PECS services
while they were clients of the County. Finding that the most
common remedy under Part B of the IDEA for deprivation of
services is compensatory education, the Hearing Officer found
that this was also an appropriate remedy under Part C and
ordered the County to provide R.M. with seventy-seven fifteen-
minute units of compensatory education services and to provide
P.M. with nineteen fifteen-minute units of compensatory
education services.

        The Hearing Officer next addressed the Ms’ natural
environment claims. The Hearing Officer determined that
“natural environment” under Part C of the IDEA included St.
Faith’s, as it was an environment where typical, non-
developmentally-delayed children would be found. Concluding
that the “natural environment” requirement under Part C of the
IDEA was analogous to the “least restrictive environment”
requirement under Part B of the IDEA, the Hearing Officer
found that it was the County’s burden to show that the twins
were educated in their natural environment. She found that the
County had failed to show that it had provided the boys with
services in their natural environment. The Hearing Officer
ultimately awarded the Ms $755.50 in tuition reimbursement for
each child for the time spent at St. Faith’s without the services,
but did not award compensatory education for the five months
that services were not provided in the natural environment.3 The


       3
      The Hearing Officer also determined that this kind of
compensatory award was appropriate under the County’s Mental

                                8
Hearing Officer did not address the Ms’ RA claim. The County
did not appeal the Hearing Officer’s decision.

       Following the decision, the County paid the tuition
reimbursement ordered by the Hearing Officer, but the ordered
compensatory education for the missing PECS hours was not
provided, as the parties could not agree as to how to make up
those hours. After the County refused to pay attorney’s fees that
the Ms had requested by letter, the Ms filed a complaint in the
District Court for the Eastern District of Pennsylvania on
August 12, 2005.

        The Ms’ complaint sought attorney’s fees under the RA,
the Americans with Disabilities Act (“ADA”) and § 1983, the
relief they were due under the Hearing Officer’s opinion, and
additional relief not granted by the Hearing Officer. The Ms’
complaint alleged that the Hearing Officer had found in favor of
their children on the natural environment claim, but did not
provide compensation for the services listed on the IFSP that
were not provided when the children were at St. Faith’s. In
addition, the Ms maintained that § 749a(b) of the RA provided
an additional basis for recovery, including the award of
attorney’s fees to the prevailing party in an action under the RA.

       Following service of the Complaint, the parties filed
cross-motions for summary judgment. Based on the motions,
the District Court entered judgment in favor of the Ms. As to


Health and Mental Retardation program as part of “special
instruction,” which is listed as a reimbursable expense.

                                9
the Ms’ claim that the Hearing Officer agreed with them on their
natural environment claim but failed to provide compensation,
the District Court agreed, finding that the services that had been
provided to the twins at the CADES center prior to their
enrollment at St. Faith’s had ceased as of January 2003. “The
County has not argued here, nor did they argue before the
H[earing] O[fficer], that the prescribed services were actually
provided between January and June, 2003, such as if, for
example, the children attended both CADES and St. Faith’s at
the same time.” It, therefore, awarded the Ms compensatory
education. As to the Ms’ claim under the RA, the District Court
simply stated that “I have found that the Plaintiffs’ claim for five
months of compensatory education for the missing supplemental
services was valid. As the prevailing parties in a Rehabilitation
Act case, Plaintiffs are entitled to recover attorney’s fees.” 4 The
District Court found that the County could not be held liable
under § 1983.

        Following this initial decision, entered on January 18,
2006, the District Court allowed the parties to provide additional
briefing on the issue of attorney’s fees. Following the receipt of
briefs on the issue, the District Court again determined that the
Ms could recover attorney’s fees. While Part C of the IDEA
does not provide for the recovery of attorney’s fees, the District
Court stated that attorney’s fees were recoverable under
§ 749a(b) of the RA. However, the District Court ruled that the


       4
        The District Court also found that the Ms could recover
under the ADA, 42 U.S.C. § 12117, but found that this was
irrelevant to its decision.

                                10
only fees which were recoverable were those expended in
bringing the appeal to the District Court and not those costs that
resulted from bringing the claims which were successful at the
administrative level. The District Court therefore awarded the
Ms approximately $15,000 in attorney’s fees.

       This timely appeal followed.

                               II.

       We have jurisdiction over the final order of the District
Court pursuant to 28 U.S.C. § 1291. We exercise plenary
review over a District Court’s grant of summary judgment,
considering whether, based on the affidavits and documents
presented, there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); Gordon v. Lewistown Hosp., 423 F.3d 184, 207
(3d Cir. 2005).         When reviewing an administrative
determination under the IDEA, both the District Court and we
use a “modified de novo standard,” giving due deference to the
administrative determination. Shore Reg’l High Sch. Bd. of
Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004). The legal
standards governing a grant of attorney’s fees are legal questions
which we review de novo. In re AT&T Corp., 455 F.3d 160,
163-64 (3d Cir. 2006).

                               III.

       Two of the claims in this case arise under Part C of the
IDEA, 20 U.S.C. § 1431, et seq. Based on a Congressional
finding that there was an urgent need to “enhance development”

                               11
for toddlers with disabilities and help families meet the needs of
their toddlers with disabilities, Congress passed Part C of the
IDEA to encourage states to create statewide programs to
provide for developmentally delayed and disabled toddlers. 20
U.S.C. § 1431. Under Part C of the IDEA, IFSPs are developed
with the consent and cooperation of toddlers’ families. Id. at
§ 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.” Bucks County Dept. of Mental Health/Mental
Retardation v. DeMora, 379 F.3d 61, 66 (3d Cir. 2004) (citing
20 U.S.C. § 1436(d)). Services provided under Part C include
family training and counseling, physical and occupational
therapy, speech therapy, special instruction, and social work
services. 20 U.S.C. § 1432(4)(E). These services are to be
provided, whenever possible, in the child’s “natural
environment.” Id. § 1432(4)(G). As under the better-known
Part B of the IDEA, parents who are dissatisfied with their
toddler’s IFSP or services may file a due process claim against
the state entity responsible for providing the services. Id.
§ 1439.

       The County claims that the District Court made two
errors when finding in the Ms’ favor on their IDEA due process
claim. It argues that the District Court inappropriately put the
burden of proof on the County, as the defendant, to prove that
services continued while the twins were at St. Faith’s, and that
the District Court improperly found that services were not
provided in the twins’ natural environment.



                               12
                                A.

       The County first contends that the District Court
improperly placed the burden on it to prove that appropriate
services were provided to the twins. In its opinion, the District
Court stated that the County failed to prove that any services
were provided to the twins while they were at St. Faith’s, as
would have been the case if, for example, the twins had
continued attending CADES in addition to St. Faith’s. This, the
County argues, impermissibly required it to bear the burden of
proving the provision of services rather than requiring the Ms to
prove the absence of services.

        We begin our analysis of the appropriate burden of proof
with the language of the statute. Under Part C of the IDEA, an
aggrieved party may bring an action in a district court to resolve
its grievance:

       Any party aggrieved by the findings and decision
       regarding an administrative complaint shall have
       the right to bring a civil action with respect to the
       complaint in any State court of competent
       jurisdiction or in a district court of the United
       States without regard to the amount in
       controversy. In any action brought under this
       paragraph, the 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.

                                13
20 U.S.C. § 1439(a)(1).5 Section 1439 does not contain any
indication of which party bears the burden of proof when a
claim is brought.

        As we have no case law directing the appropriate burden
under Part C of the IDEA, we turn to relevant case law under
Part B. Prior to 2005, most courts agreed that, at the due
process hearing, the state or county providing services to
individuals eligible under the IDEA bore the burden of proving
that it was providing appropriate services. L.E. v. Ramsey Bd.
of Educ., 435 F.3d 384, 391 (3d Cir. 2006). However, that
changed with the Supreme Court’s 2005 decision in Schaffer v.
Weast, 126 S. Ct. 528 (2005). The Supreme Court made very
clear that it was speaking only of the burden of persuasion – in
other words which party loses if the evidence is closely balanced
– and not of the burden of production – which party bears the
obligation to come forward with the evidence at different points
in the proceedings. Id. at 534. Because of the presumption that
the plaintiff bears the burden of proving the essential elements
of his claim, id., and finding nothing in the language of the
IDEA to suggest otherwise, id. at 535-37, the Supreme Court
held that the burden of persuasion lies with the party seeking
relief. Id. at 537. Therefore, when the school district challenges
an Individualized Education Plan (“IEP”) under Part B, the


       5
        The County incorrectly cites 20 U.S.C. § 1415(i)(2) for
the authorization of judicial review. Section 1415 provides the
review process for claims under Part B of the IDEA, which
deals with a free and appropriate education, not early
intervention under Part C.

                               14
burden lies with it. When the parents challenge the IEP, the
burden lies with them. We see no reason why the burden of
persuasion would lie with a different party under Part C.

        In addition to bearing the burden of persuasion, the party
challenging an administrative decision faces the additional
hurdle of overcoming a presumption that the Hearing Officer’s
findings were correct. Although a district court may make its
own findings of fact by a preponderance of the evidence and
look at evidence outside the administrative record, it is required
to give the administrative decision “due weight.” Shore Reg’l
High Sch., 381 F.3d at 199 (citing Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458
U.S. 176, 206 (1982)). “Under this standard, ‘[f]actual findings
from the administrative proceedings are to be considered prima
facie correct,’ and ‘[i]f a reviewing court fails to adhere to them,
it is obliged to explain why.’”            Id. (quoting S.H. v.
State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 271
(3d Cir. 2003)). In the case before us, these standards interact
in an unusual fashion. In most cases under the IDEA, a party
challenging an administrative decision will need to challenge the
findings of the Hearing Officer. However, in this case, the
Hearing Officer’s factual determinations were favorable to the
Ms. It was only her failure to provide appropriate compensation
and her failure to address the Ms’ RA claim that the Ms
challenged. Therefore, while the Ms bore the burden of
persuasion at the District Court level, the County was bound by
the Hearing Officer’s determinations unless it could provide
specific evidence as to why those findings were incorrect. With
this in mind, we turn to the District Court’s finding regarding
the provision of services.

                                15
        In her decision, the Hearing Officer made several factual
findings. She determined that the twins were not provided
services at St. Faith’s prior to the time the County sent people to
observe them. “Months went by before MH/MR [the County]
even agreed to observe [the twins] at St. Faith[’]s let alone
provide services there although St. Faith[’]s was [the twins’]
natural environment.” The District Court had to give due weight
to that decision. However, the Hearing Officer did not explicitly
find that the County failed to provide services to the twins at a
location other than St. Faith’s, such as CADES. Therefore, the
District Court’s statement that “[t]he County has not argued
here, nor did [it] argue before the H[earing] O[fficer], that the
prescribed services were actually provided between January and
June, 2003, such as if, for example, the children attended both
CADES and St. Faith’s at the same time[,]” was made based on
its own review, not by giving due weight to the Hearing
Officer’s determination.

       In their papers before the District Court, the Ms argued
that “the County failed to provide the twins with special
instruction for the first five months that they were in the natural
environment.” They further alleged that “each twin is entitled
to compensatory education for missing special instruction that
[was] identified on each one’s IFSP but which [was] not
delivered from the point the County stopped delivering the
service until such time as the Team developed a new IFSP.”
“Each twin was denied 20 hours of special instruction from
January 2003 until June 2003 – 100 hours each.” In support of
this contention, the Ms pointed to the fact that Mrs. M.
requested that services currently provided at the CADES center
be transferred to St. Faith’s, subsequently enrolled her children

                                16
in St. Faith’s, and then twice requested that services be provided
at St. Faith’s. This, the Ms argue, allows for a reasonable
inference that the twins were not being provided services
anywhere. The County countered merely by stating that the Ms
did not provide sufficient evidence that services were not
provided. It never argued that services actually were provided.
In its opinion, the District Court faulted the County for failing
to argue that services were provided or provide any evidence of
the continuation of services. The County argues that this
improperly shifted the burden of proof.

        However, we need not decide whether under these
circumstances – where a party opposes summary judgment
simply by claiming a lack of proof rather than by disputing a
material fact – the District Court improperly placed the burden
on the defendant. The Ms did not need to prove that services
stopped entirely in order to prove their claim. Just as a state
agency may violate Part B of the IDEA by providing services
but failing to do so in the least restrictive environment, T.R. v.
Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578-79 (3d Cir.
2000), when an agency provides EI services but fails to provide
them in the natural environment without appropriate
justification, that agency violates Part C of the IDEA. See 20
U.S.C. § 1432(4)(g); 34 C.F.R. § 303.344(d)(a)(ii). As the Ms’
claim rests on the fact that services were not delivered at St.
Faith’s, a fact the County admits, any error the District Court




                               17
may have made by requiring the County to prove that it provided
services elsewhere was harmless.6

                               B.

        The question we are left with, then, is not whether there
was sufficient evidence to show that services were stopped
altogether, but whether the District Court appropriately found
that the County had violated the IDEA by not providing EI to
the twins at St. Faith’s. In other words, we must address
whether St. Faith’s is the kind of natural environment
contemplated by the IDEA.

       We again begin with the language of the statute. Part C
of the IDEA provides money to states that “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). Those services are to be provided, when
possible, in the child’s “natural environment.” Id. § 1432(4)(G).
The child’s natural environment includes “the home and


       6
        We note that on appeal the County only claims that the
Ms failed to prove a violation of the IDEA, not that, even if they
had proved a violation of the IDEA, compensatory education
was the inappropriate remedy. Proof of a violation of Part C of
the IDEA does not require complete cessation of services. We
make no comment as to whether receiving compensatory
education as a remedy under Part C of the IDEA requires proof
of the total termination of services.

                               18
community settings in which children without disabilities
participate.” 34 C.F.R. § 303.12(b). The regulations further
define natural environment as “settings that are natural or
normal for the child’s age peers who have no disabilities.” Id.
§ 303.18. Examples of such natural environments include “the
home, child care centers, or other community settings.” Id.
§ 303.344, n. 1. If services will not be provided in a natural
environment, the IFSP must include a justification. Id.
§ 303.344(d)(a)(ii).

        In the present case, the Hearing Officer determined, and
the District Court agreed, that the twins were denied access to
special instruction in their natural environment. As the County
did not appeal the decision of the Hearing Officer, it appears
that it is bound by that decision. However, even if it was not
bound by that legal determination, its claim would still fail. At
this stage, the County argues that “natural environment” does
not include preschools. It turns first to the language used to
describe natural environment as support. Citing to Note 1 of 34
C.F.R. § 303.344, the County states “[n]atural environments
have been described by the Legislature as including home, child
care centers and community settings, not preschools.” This
argument reads the list of “natural environments” too narrowly.
Note 1 to § 303.344 reads:

       However, for these and other eligible children,
       early intervention services must be provided in
       natural environments (e.g., the home, child care
       centers, or other community settings) to the
       maximum extent appropriate to the needs of the
       child.

                               19
34 C.F.R. § 303.344, n. 1 (emphasis added). Clearly this list of
examples is not exclusive, hence the “e.g.”            Natural
environments can encompass more than simply homes and child
care centers.

        In fact, the regulations define “natural environment”
much more broadly than the list provided in Note 1 to
§ 303.344. Natural environments are “settings that are natural
or normal for the child’s age peers who have no disabilities.”
Id. § 303.18. The question is whether St. Faith’s was a normal
setting for a child the twins’ age without disabilities. The twins’
IFSP team determined that both boys required “a structured
environment that provides a balance of adult direction and
child[-]centered activities” and “modification[s] to maximize
communication and interaction with peers and adults.” Parents
looking to encourage their non-disabled child’s interaction with
peers and adults and engage their child in child-centered
activities would likely enroll their child in a day care or
preschool. Therefore, St. Faith’s is precisely the kind of natural
environment contemplated by the IDEA.7


       7
         The County makes a further argument that only the
twins’ home could be their natural environment. It argues that
the IFSP provided a justification for the twins’ enrollment in the
CADES center-based program. Therefore, it argues, that must
indicate that anything outside the home was outside the twins’
natural environment.       This argument is spurious.         The
justification was required for the CADES center-based program
because the center was a segregated center strictly for disabled
children, which is clearly outside a setting that is natural for a

                                20
        The County also argues that the Hearing Officer’s
comparison between the “natural environment” requirement in
Part C of the IDEA and the “least restrictive environment”
requirement under Part B of the IDEA was error. Under Part B
of the IDEA, a child must be provided with educational services
in the “least restrictive environment.” 20 U.S.C. § 1412(a)(5).
This has often been referred to as the “mainstreaming
component” and requires that, if possible, children with
disabilities be educated with non-disabled children. See
Ramsey, 435 F.3d at 390. In her discussion about the natural
environment, the Hearing Officer used case law on the least
restrictive environment as guidance, citing factors typically
considered in those types of cases. We find this analogy
appropriate and useful. The Hearing Officer did not determine
that a school is always the child’s natural environment, as is the
case with the least restrictive environment. Rather, she simply
determined that the County had failed to make any showing as
to efforts it made to provide the twins with services in their
natural environment or to provide them with supplemental
services in that environment, factors typically considered when
determining if a state has provided appropriate services.8



child the twins’ age without a disability. 34 C.F.R. § 303.18.
       8
        At the time the Hearing Officer made her decision,
Schaffer was not yet decided, and our leading case, Oberti v.
Board of Education, 995 F.2d 1204, 1219 (3d Cir. 1993), placed
the burden of proof on the school district or county. Therefore,
the County does not argue that the Hearing Officer erred by
placing the burden of proof on the County at the due process

                               21
Therefore, her award of reimbursement did not amount to
requiring the County to provide the twins a free and appropriate
education (a requirement not included under Part C), but was
simply a determination that the twins’ natural environment for
social interaction was a preschool and that the County failed to
provide them services in that natural environment. Because the
Hearing Officer and the District Court appropriately determined
that the twins were not provided EI services in their natural
environment, the County’s argument fails.9

                              IV.

       The County next claims that the District Court erred by
granting the Ms attorney’s fees under the RA. It argues, first,
that the Ms failed to prove a violation of the RA, and,
alternatively, that even if the Ms had proved a violation,



hearing.
       9
        We note again that the County only appeals the grant of
compensatory education based on a claimed error in the District
Court’s understanding of natural environment, not on the
District Court’s choice to award compensatory education in
addition to the tuition reimbursement provided by the Hearing
Officer. While reimbursement of professional (EI) services is
certainly proper to remedy inadequate services under Part C of
the IDEA, Adams v. Oregon, 195 F.3d 1141, 1150 (9th Cir.
1999), whether a parent can recover both preschool or child care
fees in addition to early intervention services is a question we
need not reach today.

                              22
attorney’s fees are not appropriate because Part C of the IDEA
does not allow such a recovery. We agree with the County that
the Ms failed to prove a violation of the RA.

        The Ms premised their RA violation on the same facts
used to prove their IDEA claim, namely that the County failed
to provide services for their sons in their natural environment.
In its opinion, the District Court found that this was sufficient to
prove a violation of the RA. Citing our opinions in Ridgewood
Board of Education v. N.E., 172 F.3d 238 (3d Cir. 1997), and
W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995),10 the District Court
stated that “there are very few differences, if any, between the
IDEA’s affirmative duty to educate a handicapped child and the
Rehabilitation Act’s prohibition in § 504 of discrimination
against a handicapped individual.” Therefore, because the Ms
had proved a violation of the IDEA, the District Court
concluded that they had also proved a violation of the RA. The
District Court was incorrect.

      Our case law makes clear that a party may use the same
conduct as the basis for claims under both the IDEA and the RA.
In Matula, we found that “Congress specifically intended that
[Education of the Handicapped Act, the predecessor to the


       10
         We recognize that we have recently decided A.W. v.
Jersey City Pub. Sch., -- F.3d. ---, 2007 WL 1500335 (3d Cir.
May 24, 2007), which abrogated Matula in part. Id. at *3.
However, our holding in A.W. does not affect Matula as it
pertains to this case. For purposes of the question currently
before us, Matula remains good law.

                                23
IDEA,] violations could be redressed by § 504 . . . as the
legislative history reveals.” 67 F.3d at 494. However, this
language does not indicate that a violation of the IDEA is a per
se violation of the RA, regardless of whether it meets the
independent requirements for an RA violation. As our case law
indicates by citing the requirements of the RA even in cases also
brought under the IDEA, see Ridgewood, 172 F.3d at 253, that
a plaintiff must still prove that there was a violation of the RA.

       Section 504 of the RA states:

       No otherwise qualified individual with a disability
       in the United States, as defined in section 705(20)
       of this title, shall, solely by reason of her or his
       disability, be excluded from the participation in,
       be denied the benefits of, or be subjected to
       discrimination under any program or activity
       receiving Federal financial assistance or under
       any program or activity conducted by any
       Executive agency or by the United States Postal
       Service.

29 U.S.C. § 794(a). Under the regulations that accompany the
RA, “qualified handicapped person” includes:

       (2) With respect to public preschool[,]
       elementary, secondary, or adult educational
       services, a handicapped person (i) of an age
       during which nonhandicapped persons are
       provided such services, (ii) of any age during
       which it is mandatory under state law to provide

                               24
       such services to handicapped persons, or (iii) to
       whom a state is required to provide a free
       appropriate public education under section 612 of
       the Education of the Handicapped Act;

       ...

       (4) With respect to other services, a handicapped
       person who meets the essential eligibility
       requirements for the receipt of such services.

34 C.F.R. § 104.3(l).

         Based on this language, it is clear why violations of Part
B of the IDEA are almost always violations of the RA. Under
§ 612 of the IDEA, states accepting federal funds must provide
children of a certain age a free and appropriate public education.
20 U.S.C. § 1412. The regulations accompanying the RA adopt
this requirement and provide that a handicapped person is one
“to whom a state is required to provide a free appropriate public
education under section 612 . . . .” 34 C.F.R. § 104.3(k).
Therefore, when a state fails to provide a disabled child with a
free and appropriate education, it violates the IDEA. However,
it also violates the RA because it is denying a disabled child a
guaranteed education merely because of the child’s disability.
It is the denial of an education that is guaranteed to all children
that forms the basis of the claim. Therefore, a plaintiff can
prove an RA violation where “(1) he is ‘disabled’ as defined by
the Act; (2) he is ‘otherwise qualified’ to participate in school
activities; (3) the school or the board of education receives
federal financial assistance; and (4) he was excluded from

                                25
participation in, denied the benefits of, or subject to
discrimination at, the school.” Ridgewood, 172 F.3d at 253.

        As the County argues, the analysis is not the same under
Part C of the IDEA as it is under Part B. As we have
established, children denied services under Part B of the IDEA
are “otherwise qualified” to participate in school and are denied
that education because of their disabilities. However, children
under the age of three, who are covered by Part C of the IDEA,
are not entitled to a free and appropriate education under § 612.
More specifically, the only reason children receiving services
under Part C of the IDEA are entitled to such services is by
reason of their disability. Therefore, when an agency violates
Part C of the IDEA, it does not use disability as a basis to deny
a child something to which he is entitled. Rather, the state
denies a child services to which he is entitled only because of
his disability but on some other basis. In this case, the reason
the M twins’ services fell short was not because they were
disabled, as is the case when children under Part B of the IDEA
are denied the education guaranteed to non-disabled children,
but because the County misunderstood the concept of natural
environment. While this is a violation of the IDEA, it is not a
violation of the RA. A plaintiff cannot make out an RA claim
simply by proving (1) that he was denied some service and
(2) he is disabled. The state must have failed to provide the
service for the sole reason that the child is disabled. Menkowitz
v. Pottstown Mem’l Med. Ctr., 154 F.3d 113, 124 (3d Cir. 1998)
(holding that the disability must be the cause of the
discrimination or denial of benefits or services). Because the
Ms did not establish a violation of the RA and because


                               26
attorney’s fees are not available under Part C of the IDEA, the
District Court erred when granting them attorney’s fees.11

                              V.

        For the reasons set forth above, we will affirm the
District Court’s grant of summary judgment and award of
compensatory education on the Ms’ IDEA claim, but will
reverse the District Court’s grant of summary judgment and
award of attorney’s fees on the Ms’ RA claim and remand so
that the District Court may enter summary judgment in favor of
the County on that claim.




       11
        The Ms also made a claim for attorney’s fees under the
ADA. The District Court never reached that claim as it granted
them attorney’s fees based on the RA. However, the ADA, like
the RA, includes a requirement that the plaintiff be denied
services on the basis of his disabilities. Because we have
already determined that this was not the reason the M twins
were denied services, any claim under the ADA must also fail.

                              27
