                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-2004

Bucks Cty Dept v. Comm PA Dept Welfare
Precedential or Non-Precedential: Precedential

Docket No. 02-3919




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PRECEDENTIAL                                   Robert O. Baldi, Esquire (Argued)
   UNITED STATES COURT OF                      123 West Bridge Street
           APPEALS                             New Hope, PA 18938
    FOR THE THIRD CIRCUIT
        _______________                              Counsel for Appellant

             No: 02-3919                       Doris M. Leisch, Esquire (Argued)
                                               Commonwealth of Pennsylvania
                                               Department of Public Welfare, Room 302
BUCKS COUNTY DEPARTMENT OF                     1400 Spring Garden Street
         MENTAL                                State Office Building
HEALTH/MENTAL RETARDATION,                     Philadelphia, PA 19130

                        Appellant              Daniel M. Fellin, Esquire
                                               Commonwealth of Pennsylvania
                   v.                          Office of Legal Counsel
                                               Department of Public W elfare,
                                               3 rd Floor West
     COMMONWEALTH OF                           Health & Welfare Building
       PENNSYLVANIA,                           7 th & Forster Streets
    DEPARTMENT OF PUBLIC                       Harrisburg, PA 17120
           WELFARE;
      BARBARA DEMORA                                 Amicus-Comm. Of PA
        _______________

 Appeal from the United States District        Gary S. Mayerson, Esquire (Argued)
                 Court                         Mayerson & Associates
for the Eastern District of Pennsylvania       250 West 57 th Street, Suite 624
 (D.C. Civil Action No. 01-cv-03254 )          New York, NY 10107
    District Judge: Berle M. Schiller
           _______________                           Counsel for Appellees

       Argued October 15, 2003                       OPINION OF THE COURT

   Before: SLOVITER, ROTH and
    STAPLETON, Circuit Judges
                                               ROTH, Circuit Judge:

   (Opinion filed August 18, 2004)
                                                     This   case   arises    under   the

                                           1
Individuals with Disabilities in Education         reimbursing the parent for her time spent
Act, 20 U.S.C. § 1400, et seq (1998)               in providing therapy is “appropriate”
(IDEA). The defendant, Bucks County                relief.
Department of Mental Health and Mental
                                                       I. FACTUAL BACKGROUND
Retardation (Bucks County), appeals the
District Court’s grant of summary                         Barbara de Mora’s daughter, I.D.1 ,
judgment in favor of Barbara de Mora, the          was diagn osed with pervasiv e
plaintiff. The District Court affirmed the         developmental delay, cerebral palsy, and
Hearing Officer’s award, reimbursing de            deafness. Because I.D. has developmental
Mora for the time she spent working with           delays, she was eligible for early
her disabled daughter after Bucks County           intervention services under Part C of
refused to provide the specific therapy de         IDEA. Under IDEA, the Office of Mental
Mora requested as part of her daughter’s           Re tardation of the Pe nnsylv a n ia
therapy program.                                   Department of Welfare administers the
                                                   Pennsylvania Early Intervention Program
       Because the review process is a
                                                   for infants and toddlers from birth up to
long one and children are eligible for
                                                   age three. Bucks County is the local
services under Part C of IDEA only up to
                                                   mental health and mental retardation office
the age of three, parents face difficult
                                                   responsible for coordinating services for
issues when a state denies services,
                                                   I.D.
including the interim provision of services
for the child and the fina ncial                          De Mora and Bucks County worked
responsibility for those services. The issue       together to develop an individualized
we are called upon to resolve is whether           family service plan (IFSP) for I.D. The
paying de Mora for the time she personally         IFSP outlined goals and objectives for I.D.
spent working with her daughter after              as well as services that I.D. needed to
Bucks County refused to provide services           receive in order to obtain the stated goals
is “appropriate” relief under 20 U.S.C. §          and objectives. The IFSP was modified
1439(a)(1).                                        several times after it was first developed
                                                   on July 1, 1999, and ultimately provided
       We will affirm the District Court.
                                                   I.D. with 24.25 hours each week of
After taking into account “equitable
                                                   physical therapy, speech therapy,
considerations,” School Committee of the
                                                   occupational therapy, and special
Town of Burlington, Massachusetts v.
                                                   instruction.
Department of Education of
Massachusetts, 471 U.S. 359, 374 (1985),                  De Mora grew dissatisfied with
we hold that under the particular                  I.D.’s program because she did not feel
circumstances of this case, where a trained
service provider was not available and the
parent stepped in to learn and perform the                1
                                                           The parties agreed to refer to de
duties of a trained service provider,
                                                   Mora’s daughter as I.D.

                                               2
I.D. was benefitting from it. In September          I.D. De Mora spent many hours working
1999, de Mora requested that I.D.’s IFSP            with I.D. as a Lovaas therapist without
be amended to provide for additional hours          Laudon’s presence. When de Mora was
of therapy. She also indicated to Bucks             deposed, she gave specific examples of
County a preference for the Lovaas                  training exercises she executed when
methodology of early intervention training          training I.D. I.D.’s therapists provided
and asked Bucks County to hire Patricia             affidavits confirming that de Mora was
Laudon, a Lovaas-trained therapist, to              acting as a Lovaas therapist, not as a
provide the Lovaas training.2 Bucks                 mother, when she was working with I.D.
County refused to provide more hours of
                                                       II. PROCEDURAL HISTORY
therapy and also refused to provide a
Lovaas training program for I.D. Because                   After Bucks County refused to
de Mora was convinced that the Lovaas               amend the IFSP to provide I.D. with more
training would benefit I.D., she hired,             hours of therapy and Lovaas training, de
without Bucks County’s support, Laudon,             Mora requested a due process hearing.
who in turn provided in-home therapy to             The Hearing Officer noted that de Mora
I.D. from October 8, 1999, through April            believed that I.D. had showed immediate
10, 2000.                                           improvement with the initiation of the
                                                    Lovaas training, but concluded that the
        Because Laudon was not able to
                                                    existing IFSP was “appropriate” under 34
spend as many hours with I.D. as I.D.
                                                    C.F.R § 303.344, and therefore I.D. w as
needed and because de Mora was unable to
                                                    not entitled to any more hours of therapy
find another person trained in Lovaas
                                                    or additional hours for Lovaas training:
methodology, Laudon trained de Mora so
that de Mora would be able to provide the                 The County presented
Lovaas therapy to I.D. Laudon held one-                   evidence that I.D. made
on-one workshops where de M ora would                     progress from services
act as the Lovaas therapist as Laudon                     provided in her IFSP before
coached her. De Mora read and learned                     and along with Lovaas. It is
discrete trial training teaching guidelines               understandable that the
and other books on the Lovaas                             parents would ask for what
methodology. Lisa Parker, the Early                       they may consider as the
Intervention Coordinator at Bucks County,                 best progra m an d/or
testified at the due process hearing that, in             methodology. It may be
her opinion, de M ora was qualified to train              argued that I.D.’s progress
                                                          under the County services
                                                          was not good enough when
       2
           Lovaas training is a type of                   compared to or in
discrete trial training where lesson                      conjunction with another.
formats and behavioral reinforcements                     The County, however, does
are used to teach specific skills.

                                                3
       not have the mandate to                     training. Id. Bucks County did not appeal
       provide the best.                           the Commonwealth Court’s decision.
December 31, 1999 Decision of Hearing                      On     remand        from      the
Officer at A41.                                    Commonwealth Court of Pennsylvania, the
                                                   Hearing Officer ordered Bucks County to
       De Mora appealed the Hearing
                                                   reimburse de Mora $3,520 for expenses
Officer’s decision to the Commonwealth
                                                   she incurred in paying Laudon and $6,842
Court of Pennsylvania. The court noted
                                                   for the time she personally spent providing
that when determining the appropriateness
                                                   the Lovaas training.3 On the issue of
of the IFSP, the Hearing Officer should
                                                   reimbursing de Mora for the time she spent
have examined evidence of I.D.’s progress
                                                   training I.D., the Hearing Officer
before the Lovaas training began, as
                                                   commented:
opposed to her progress while both the
Lovaas and IFSP services were provided.                   In the present instance, time
The court found that Bucks County did not                 spent by Mrs. de Mora with
prove that the services they provided to                  I.D. is not in the same vein
I.D. before the private Lovaas training                   as a mother spending time
began produced meaningful progress                        with her child in the normal
toward the IFSP goals, and therefore the                  course of daily living
IFSP was not “appropriate” for I.D. De                    activities. Mrs. de Mora
Mora v. Dep’t of Pub. Welfare, 768 A.2d
904, 908 (Pa. Commw. Ct. 2001).
Because I.D. was making progress toward                   3
                                                             The $3,520 award represents 88
her goals as a result of the combination of
                                                   hours Laudon spent training I.D. from
the private Lovaas training and the
                                                   October 8, 1999, to December 14, 1999.
services Bucks County was providing, the
                                                   The $6,842 award represents 311 hours
court held that the private Lovaas training
                                                   de Mora spent training I.D. during the
was appropriate. Id. On the issue of
                                                   same time period. Laudon and de Mora
providing an “appropriate” remedy for de
                                                   continued training I.D. through April 10,
Mora under 20 U.S.C. § 1439(a)(1), the
                                                   2000, the date on which I.D. lost
court held that even though I.D. was no
                                                   eligibility for early intervention services.
longer eligible for services under Part C of
                                                   However, the Commonwealth Court of
IDEA because she was over three years
                                                   Pennsylvania limited the Hearing
old, de M ora was “entitle[d] to
                                                   Officer’s consideration of reimbursement
reimbursement for her expenses in
                                                   to the number of hours Laudon and de
providing I.D. with private Lovaas
                                                   Mora spent from October 8, 1999, to
training.” Id. The court remanded the
                                                   December 14, 1999, because the
case back to the Hearing Officer to make
                                                   pleading only addressed this period of
findings as to the “actual costs” incurred
                                                   time. De M ora v. Dep’t of Pub. Welfare,
by de Mora in providing the private
                                                   768 A.2d 904, 908 n.16.

                                               4
      functioned as the provider                with I.D. Bucks County did not appeal the
      of discrete trial training for            Hearing Officer’s order to reimburse de
      I.D. under the rubric of                  Mora for the costs she incurred from hiring
      Lovaas-based ABA. The                     Laudon. On cross-motions for summary
      discrete trial training is not            judgment, the District Court granted
      an issue since it has been                summary judgment in favor of de Mora.
      determined to be appropriate              Buc k s County Dep’t of Mental
      for I.D.     What may be                  Health/Mental Retardation v. de Mora, 227
      somewhat out of th e                      F.Supp. 2d 426 (E.D.Pa. 2002). The
      ordinary is that Mrs. de                  District Court concluded that IDEA does
      Mora provided the training                not preclude de Mora from obtaining
      herself instead of paying a               reimbursement for time expended
      provider from outside the                 providing early intervention services to
      home.                                     I.D., nor is de Mora precluded from being
                                                reimbursed because of her lack of formal
      ...
                                                certification to provide the training. Id. at
      E quitable cons ideratio n                427.
      would indicate that there
                                                      Bucks County appealed to this
      should be a recompense for
                                                Court on October 21, 2002.
      the expenditure of time by
      Mrs. de Mora in providing
      I.D. with what the County
                                                      III. JURISDICTION AND
      should have provided. Were
                                                      STANDARD OF REVIEW
      the County to have provided
      I.D. with the discrete trial                     The District Court had jurisdiction
      training in the place of Mrs.             pursuant to 20 U.S.C. § 1439(a)(1) of the
      de Mora, it would have                    appeal from the Hearing Officer’s
      i n c urred the co st o f                 decision. We have jurisdiction of the
      implementing discrete trial               appeal from the District Court’s decision
      training for I.D.                         pursuant to 28 U.S.C. § 1291.
                                                        On review of a district court’s
                                                decision on a motion for summary
June 3, 2001 Decision of Hearing Officer
                                                judgment, we exercise plenary review, and
at A52-53.
                                                we are required to apply the same test the
      The only issue Bucks County               district court should have used initially.
appealed to the United States District          S.H. v. State-Operated Sch. Dist. of
Court for the Eastern District of               Newark, 336 F.3d 260, 269 (3d Cir. 2003).
Pennsylvania was whether it was proper to
                                                       Under IDEA, the District Court,
reimburse de Mora for the time she spent
                                                acting as a reviewing court:

                                            5
       shall receive the records of                  . . findings of fact to avoid the impression
       the     administrative                        that it is substituting its own notions of
       proceedings, shall hear                       sound . . . policy for those of the agency it
       additional evidence at the                    reviews.” Id. As for the legal standards
       request of a party, and,                      applied by the District Court, our review is
       basing its decision on the                    plenary. Id.
       p repond eran c e of th e
                                                                IV. DISCUSSION
       evidence, shall grant such
       relie f a s t h e c o u rt                    A . Statutory         and     R egulato ry
       determines is appropriate.                    Framework
                                                              Under Part C of IDEA, the federal
                                                     government provides financial assistance
                                                     to the states when the states “develop and
20 U.S.C. § 1439(a)(1). Accordingly, the
                                                     implement a comprehensive, coordinated,
traditional standard fo r review ing
                                                     multidisciplinary, interagency system that
summary judgments is not applicable. As
                                                     provides early intervention services for
to findings of fact, the proper standard of
                                                     infants and toddlers with disabilities and
review for the District Court, and this
                                                     their families.” 20 U.S.C. § 1431(b)(1).
Court, is “modified de novo.” S.H., 336
                                                     Under Part C, infants and toddlers with
F.3d at 270.         Under this approach,
                                                     disabilities, up to age three, are entitled to
reviewing courts are “required to defer to
                                                     early intervention services provided at no
the . . . [hearing officer’s] factual findings
                                                     cost and designe d to m eet the
unless . . . [they] can point to contrary
                                                     developmental needs of the children. See
nontestimonial extrinsic evidence on the
                                                     id. § 1432(4)(B), (C). The services are
record,” id., or “unless the record read in
                                                     provided by “qualified personnel,” id. §
its entirety would compel a contrary
                                                     1432(4)(F), and include, inter alia, family
conclusion.” Id. (quoting Carlisle Area
                                                     tr a inin g and c oun seling, s pecia l
Sch. v. Scott P., 62 F.3d 520, 529 (3d Cir.
                                                     instruction, occupational therapy, physical
1995). If the reviewing court receives
                                                     therapy, psychological services, and social
additional evidence, it is “free to accept or
                                                     work services. See id. § 1432(4)(E). All
reject the agency findings depending on
                                                     services, “to the maximum extent
whether those findings are supported by
                                                     appropriate, are provided in natural
the new, expanded record.” Id. (quoting
                                                     environments,” including the child’s home
Oberti v. Bd. of Educ. of the Clementon
                                                     and other settings where children without
Sch. Dist., 995 F.2d 1204, 1220 (3d Cir.
                                                     disabilities interact. See id. § 1432(4)(G).
1993)). If the reviewing court does not
                                                     All services must be provided in
receive additional evidence, “it must find
                                                     accordance with an IFSP. See id. §
support for any factual conclusions
                                                     1432(4)(H). Under Part C, the IFSP is
contrary” to the hearing officer’s and
                                                     developed with the cooperation and
“must explain why it does not accept the .

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


                                                         7
the relief is to be ‘appropriate’ in light of              fashioning a remedy for an
the purpose of the Act.” 471 U.S. 359,                     IDEA violation, a district
370 (1985). 4 The Court in Burlington held                 court may wish to order
that reimbursing parents for expenses                      educational services, such as
incurred from placing their child in private               comp ensatory education
school is “appropriate” relief when a court                beyond a child’s age of
has found that the public school placement                 eligibility, or reimbursement
was inappropriate and that the parents’                    for providing at private
private placement was appropriate. Id.                     expense what should have
                                                           been offered by the school,
        We also have broadly interpreted
                                                           rather than compensatory
the term “appropriate.” In W.B. v. Matula,
                                                           damages for generalized
we “discern[ed] nothing in the text or
                                                           pain and suffering.
history suggesting that relief under IDEA
is limited in any way, and certainly no
‘clear direction’ to rebut the presumption
                                                    Id. at 495.
that all relief is available.” 67 F.3d 484,
494 (3d Cir. 1995). We also                                Here, the Commonwealth Court of
                                                    Pennsylvania determined that the IFSP
       caution[ed]        that    in
                                                    was not “appropriate” because I.D. was
                                                    not making meaningful progress toward
                                                    her IFSP goals. The court also determined
       4
         In Burlington, the Court                   that the private training was appropriate.
interpreted the remedial provision under            De Mora v. Dep’t of Pub. Welfare, 768
Part B of the Education of the                      A.2d at 908.        Bucks County never
Handicapped Act, IDEA’s predecessor,                appealed these findings.
which grants eligible children the right to
                                                           Because the Commonwealth Court
“free appropriate education.” 20 U.S.C.
                                                    determined that the privately delivered
§ 1415(a). While Part C of IDEA
                                                    services were appropriate and because
provides services to infants and toddlers,
                                                    Bucks County’s denial of these services
up to age three, in accordance with an
                                                    made the IFSP inappropriate and
IFSP, Part B provides special education
                                                    constituted a violation of IDEA, under
services to children from age three to
                                                    Burlington and under our own precedent,
twenty in accordance with an
                                                    de Mora is entitled to reimbursement for
individualized education plan (IEP). The
                                                    the privately delivered services. Bucks
remedial provisions under Part B and
                                                    County does not appeal the Hearing
Part C are, however, identical. Compare
                                                    Officer’s reimbursement award for the
20 U.S.C. § 1415(i)(2)(B) with 20 U.S.C.
                                                    costs de Mora incurred from hiring
§ 1439(a)(1) (both stating that the court
                                                    Laudon, however.       It challenges the
“shall grant such relief as the court
                                                    reimbursement award for the time de Mora
determines is appropriate.”).

                                                8
personally spent with I.D. That question is
an issue of first impression for this Court.
                                                             Because paying de Mora for her
C.Under Burlington, paying de Mora                 time constitutes reimbursement and not
for her time would constitute                      damages, we do not need to decide today
reimbursement, not damages.                        whether monetary damages may be
                                                   recovered in an action brought under
                                                   IDEA. In Burlington, the Supreme Court
       The Pennsylvania Department of              a d d r e s s e d                 t h e      s a m e
Public Welfare filed a brief as Amicus             r e i m b u r se m e n t / d a m a g e s a r gum e n t,
Curiae. The Department argues that                 rejected it, and defined reimbursement:
paying de Mora for her time would not be
                                                            Re imbur se me nt me r e ly
“appropriate” relief because she never
                                                            requires the Town to
incurred any out-of-pocket expenses by
                                                            belatedly pay expenses that
providing services to I.D. herself. The
                                                            it should have paid all along
Department contends further that paying
                                                            and would have borne in the
de Mora for the time she personally spent
                                                            f i r s t in sta nc e had it
would constitute a damages award, and
                                                            developed a proper IEP.
damages are not recoverable under IDEA.5
                                                   471 U.S. at 370-371. A damages award on
                                                   the other hand is recompense for
       5
          The Department cites Matula              “generalized pain and suffering.” Matula,
for the proposition that damages are not           67 F.3d at 495; see also Polera v. Bd. of
recoverable in an action brought under             Educ. of the Newburgh Enlarged City Sch.
IDEA. In Matula, we allowed the                    Dist., 288 F.3d 478 (2d Cir. 2002) (noting
awarding of monetary damages in an                 that a damages award “is redress for a
action brought under 42 U.S.C. § 1983 in           broad range of harms associated with
which the plaintiff asserted a violation of        personal injury, such as pain and suffering,
IDEA. 67 F.3d at 495. The Department               emotional distress, harm to reputation, or
argues that damages are not allowed here           other consequential damages.”).
because this is not a § 1983 action.
                                                           De Mora is not seeking recompense
       We have not settled whether
                                                   for her or I.D.’s pain and suffering, mental
damages are recoverable in an action
                                                   anguish or other “damages” as a
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,            City Sch. Dist., 288 F.3d 478, 485 (2d
we discern nothing in the text or history          Cir. 2002) (noting that in Matula we
suggesting that relief under IDEA is               “addressed the issue without endorsing
limited in any way.”); see also Polera v.          the view that damages are never
Bd. of Educ. of the Newburgh Enlarged              available under the IDEA.”).

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

                                                      10
raising money to send his son to private           charged. Second, the Hearing Officer
school because his time was not spent on           noted that “the hourly rate so submitted
delivering the services but on raising             [for de Mora] is within the range of the
money). The only danger that the Hurry             cost of a teacher had the County employed
court recognized in allowing this type of          such for I.D.” June 3, 2001 Decision of
reimbursement was the potential for                Hearing Officer at A54. We take note of
excessive reimbursement. Hurry, 734 F.2d           the Hearing Officer’s finding that $22 an
at 884.                                            hour is within the range of the cost that
                                                   Bucks County would have had to pay and
D. Under Florence County, the Hearing
                                                   conclude that the level of reimbursement
Officer awarded a “reasonable level of
                                                   awarded is reasonable. We also conclude
reimbursement” to de Mora for her
                                                   that the total number of hours of Lovaas
time.
                                                   training was not excessive. The Lovaas
                                                   program recommends a total of 40 hours
                                                   per week of training, and the combined
        The Supreme Court in Florence
                                                   number of hours of training provided by de
County cautioned that reimbursement
                                                   Mora and Laudon amounted to 40 hours
would not be “appropriate” if the cost of
                                                   per week. Therefore, reimbursing de Mora
the private replacement is unreasonable.
                                                   for 40 hours of private therapy is
510 U.S. 7, 16 (1993). The Court noted
                                                   reasonable. See T.H. v. Bd. of Educ. of
that “[c]ourts fashioning discretionary
                                                   Palatine Cmty. Consol. Sch. Dist., 55
equitable relief under IDEA must consider
                                                   F.Supp. 2d 830, 844-45 (N.D.Ill. 1999)
all relevant factors, including the
                                                   (reimbursement cost not excessive because
appropriate and reasonable level of
                                                   38-hour Lovaas program does not exceed
reimbursement that should be required.”
                                                   the range of appropriate treatment levels
Id.; accord Adams v. Oregon, 195 F.3d
                                                   recommended by experts).
1141, 1151 (9th Cir. 1999) (Parents “are
entitled to reimbursement if their private                 Reimbursement for De Mora’s time
placement and tutoring       . . .    was          at the rate of $22 an hour is “well within
appropriate and reasonable.”).                     any reasonable estimate of fair
                                                   reimbursement.” Hurry, 734 F.2d at 884.
       The Department argues that the
                                                   Moreover, as we indicated above, if
amount the Hearing Officer awarded is not
                                                   Laudon had provided all of the hours of
a “reasonable level of reimbursement,” yet
                                                   training, Bucks County would have to
it does not offer any explanation why the
                                                   make reimbursement at a higher level.
amount is unreasonable. In fact, the
amount that the Hearing Officer awarded            E.De Mora is entitled to reimbursement
de Mora for her time is a “reasonable level        even though she does not fit IDEA’s
of reimbursement.” First, de Mora is               definition of “qualified personnel.”
reimbursed for her time at $22/hour,
approximately half the rate that Laudon

                                              11
       Bucks County argues that                    practice in the field.
reimbursing de Mora would not be
                                                           There is support, however, from the
“appropriate” because she is not “qualified
                                                   Supreme Court for the proposition that
personnel.” Bucks County is correct in
                                                   although the state is required to use
asserting that de Mora is not “qualified
                                                   “qualified personnel” when the state is
personnel” as defined by IDEA and its
                                                   providing the services, parents are not
regulations.7 She does not have a formal
                                                   required to find a replacement who meets
education in behavioral science and does
                                                   the definition of “qualified personnel”
not hold a license or certification to
                                                   when the state fails to provide appropriate
                                                   services and there is an IDEA violation.
                                                   Florence County, 510 U.S. at 14. In
       7
           The IDEA defines “qualified             Florence County, the Supreme Court held
personnel” as                                      t h a t p a r e n t s w e r e e n ti t le d t o
        (i) special educators;                     reimbursement for private education
        (ii) speech-language                       expenses even though the private school
        pathologists and                           did not meet state standards. The Court
        audiologists;                              reasoned that if parents were required to
        (iii) occupational                         place their children in schools that do meet
        therapists;                                the state’s requirements, it would eliminate
        (iv) physical therapists;                  their right to withdraw their child from the
        (v) psychologists;                         inappropriate placement and the child’s
        (vi) social workers;                       right to an appropriate education. Id. at
        (vii) nurses;                              14.
        (viii) nutritionists;
                                                           Similarly, the requirement that
        (ix) family therapists;
                                                   “qualified personnel” deliver the services
        (x) orientation and mobility
                                                   under Part B of IDEA does not make sense
        specialists; and
                                                   in the context of choosing substitutions for
        (xi) pediatricians and other
                                                   therapy. De Mora’s rejection of the
        physicians.
                                                   existing IFSP, and Bucks County’s failure
20 U.S.C. § 1432(4)(F); see also 34
                                                   to modify the plan to conform to her
C.F.R.§ 303.12(e) (containing a similar
                                                   wishes, are the reasons she decided to look
list of professions). “Qualified” is
                                                   for a private therapist. It would be
defined in the regulations as “a person
                                                   inconsistent with IDEA’s goals to forbid
[who] has met State approved or
                                                   parents from using a replacement to
recognized certification, licensing,
                                                   provide appropriate early intervention
registration, or other comparable
                                                   services “‘simply because that . . . [person]
requirements that apply to the area in
                                                   lacks the stamp of approval of the same . .
which the person is providing early
                                                   . system that failed to meet the child’s
intervention services.” 34 C.F.R. §
                                                   needs in the first place.’” Id. at 14 (citing
303.22.

                                              12
Carter v. Florence County Sch. Dist. Four,        F.De Mora should be reimbursed
950 F.2d 156, 164 (4th Cir. 1991)).8              because she acted as a service provider
                                                  and provided therapy to I.D.

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

                                             13
must p r o vide “a family-dire cted                  specific context of this case. Burlington
assessment of the resources, priorities, and         held that, in order to satisfy Congress’
concerns of the family and the                       intent that the services provided under
identification of the support and services           IDEA be free, parents are entitled to seek
necessary to enhance the family’s capacity           retroactive reimbursement for providing
to meet the developmental needs of the               appropriate replacement services where
infant or toddler.”        20 U.S.C. §§              the state has failed to meet is obligations.
1436(a)(2), 1432(4)(E); 34 C.F.R. §                  We have recognized, however, that not all
303.12(c)(2). The parents are expected to            paren ts are capa ble of obtain ing
participate in the development of the IFSP,          appropriate replacement services. See
and “[t]he contents of the . . . [IFSP] shall        Lester H. v. Gilhool, 916 F.2d 865, 872-73
be fully explained to the parents and                (3d Cir. 1990). In Lester H., a case arising
informed written consent from the parent             under Part B, we held that “Congress, by
shall be obtained prior to the provision of          allowing the courts to fashion an
early intervention services.” 20 U.S.C. §            appropriate remedy to cure the deprivation
1436(a)(3), (e); 34 C.F.R. § 303.12(a)(2).           of a child’s right to a free appropriate
                                                     public education, did not intend to offer a
        Although Congress envisioned
                                                     remedy only to those parents able to afford
parental involvement, however, Congress
                                                     an alternative private education.” Id. at
primarily contemplated that Bucks County
                                                     873. We therefore concluded that an
would provide the early intervention
                                                     “appropriate” remedy encompasses the
services to I.D. and her family at no cost
                                                     power of a court to order school authorities
and that de Mora and her family would not
                                                     to provide compensatory education to a
have to resort to providing those services
                                                     child, even beyond the child’s age of
or paying for them. The level of parental
                                                     eligibility for such services under Part B.
involvement that Congress intended when
a state meets its burden of providing                       In this case, de Mora was certainly
appropriate early intervention services is           able to afford appropriate replacement
entirely separate from what Congress                 services for I.D., but could not find anyone
intended as a remedy when a state fails to           to provide those services.          She was
meet that burden. Congress contemplated              consequently faced with precisely the same
a broad remedy when it gave reviewing                dilemma as the parents in Lester H.: the
cour ts the disc reti on to a w a r d                state was not providing appropriate
“appropriate” relief. “Congress expressly            services and she was unable to obtain
contemplated that the courts would fashion           replacement services. Consistent with our
remedies not specifically enumerated in              holding in Lester H., we must accept the
IDEA.” Matula, 67 F.3d. at 494-95.                   proposition that de Mora is entitled to
                                                     some type of remedy that is consistent with
       There is another compelling reason
                                                     the purposes of Part C of IDEA. Because
for our conclusion that Congress intended
                                                     of significant differences between Part B
the remedy sought by de Mora in the

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

                                               15
“appropriate” remedy.                               does not compel a different finding.
                                                    Furthermore, the additional evidence the
       Bucks County’s argument about
                                                    District Court received, in the form of
parental involvement would be more
                                                    depositions and affidavits, supports the
convincing if in fact de Mora had merely
                                                    Hearing Officer’s findings.
been acting as an involved parent. There
is, however, ample evidence in the record                  Laudon trained de Mora by
to support the conclusion that de Mora              engaging in one-on-one workshops where
stepped into the shoes of a therapist,              de Mora would act as the implementer of
ultimately acting over and above what is            the Lovaas curriculum and Laudon would
expected of parents under IDEA. The                 coach her.        The implementer is the
Hearing Officer made a finding that de              therapist who works one-on-one with the
Mora was herself a trial training provider:         child in a controlled environment to help
                                                    the child master certain tasks. The parent
       In the present instance, time
                                                    is usually referred to as a generalizer
       spent by Mrs. de Mora with
                                                    because the parent generalizes the skills
       I.D. is not in the same vein
                                                    learned in therapy into the home
       as a mother spending time
                                                    environment. For example, in therapy, the
       with her child in the normal
                                                    implementer and the child may be working
       course of daily living
                                                    on matching objects to pictures. During
       activities. Mrs. de Mora
                                                    implementation, the child would repeat the
       functioned as the provider
                                                    task until the child performed it correctly.
       of discrete trial training for
                                                    During generalization, the parent may ask
       I.D.
                                                    the child to match an object to a picture
                                                    while they are in the kitchen getting ready
                                                    for dinner. During the generalization
June 3, 2001 Decision of Hearing Officer
                                                    process, the parent does not teach the child
at A52-53. The District Court agreed and
                                                    how to master new tasks but reinforces the
found that “Mrs. de Mora, in providing the
                                                    training initiated by the implementer.
Lovaas training, acted well beyond the
parental role contemplated under Part C.”                  This workshop method is the same
Bucks Cou nty Dep’t of M enta l                     method by which Laudon was trained and
Health/Mental Retardation v. De M ora,              which Laudon used to train other
227 F.Supp. 2d at 429. The District Court           implementers. De M ora read and learned
was required to defer to this finding unless        discrete trial training teaching guidelines
it could point to contrary nontestimonial           and other books on the Lovaas
extrinsic evidence. S.H., 336 F.3d at 270.          methodology. It is evident from her
There is no contrary nontestimonial                 deposition that she is very familiar with
extrinsic evidence that the District Court          the guidelines. She also spent many hours
could have relied on to make a different            watching Laudon act as an implementer
finding. A reading of the entire record             and talking to Laudon on the phone. Lisa

                                               16
Parker, the Early Intervention Coordinator
at Bucks County, testified at the due
process hearing that, in her opinion, de
                                                    Mora not only acted as a parent, as
Mora was qualified to train I.D.
                                                    Congress intended, but also acted as a
        The evidence here supports the              service provider. Furthermore, this
conclusion that de Mora acted not only as           argument overlooks the fact that parental
a generalizer but also as an implementer.           involvement is contemplated throughout
De M ora is familiar with the discrete trial        all of IDEA. While eligible children and
training techniques. When questioned, de            their families are the recipients of
Mora was able to give concrete examples             services under Part C, 20 U.S.C. § 1433
of how she worked with I.D. as an                   (“provide early intervention services for
implementer to master certain tasks. She            infants and toddlers with disabilities and
testified that she was very learned in the          their families”), and children alone are
teaching guidelines, and noted the                  the recipients of services under Part B,
importance of strict adherence to the               20 U.S.C. § 1411 (“provide special
guidelines in order to achieve positive             education and related services to children
results. Finally, the affidavits from four          with disabilities”), this does not mean
other therapists who were present in the            that Congress envisioned parental
home with de Mora and observed de Mora              involvement to differ as soon as a child
perform the Lovaas training confirm that            turns three years old, becomes eligible
De Mora was acting as a therapist, not as a         for special education services, and loses
mother, when she was working with I.D.9             eligibility for early intervention services.
                                                    As the Supreme Court noted in
                                                    Burlington, “[i]n several places, [Part B
       9
          The Department of Public                  of] the Act emphasizes the participation
Welfare correctly points out that Part C            of the parents in developing the child’s
of IDEA, which governs early                        educational program and assessing its
intervention services for infants and               effectiveness.” 471 U.S. at 368; see also
toddlers, includes parents and children in          20 U.S.C. §§ 1400(c), 1401(19), 1412(7),
service delivery, whereas Part B, which             1415(b)(1)(A), (C), (D), (E), 1415 (b)(2);
governs special education services for              34 C.F.R. § 300.345 (1984).
school-age children, includes only                          The Department of Public Welfare
children in service delivery. This                  also argues that de Mora should not be
difference, they assert, strengthens their          compensated because the Lovaas
argument that the time de Mora spent                program places emphasis on parental
with I.D. was time for which Congress               involvement, and “M rs. de Mora’s
intended her to spend and not be                    involvement in her child’s programming
compensated.                                        was entirely consistent with the parental
       This argument overlooks the                  role expected by and, indeed, critical to
crucial finding that, as we discussed, de           the success of . . . the Lovaas program in

                                               17
                                                          Moreover, affirming the District
                                                   Court will not have as far reaching effects
G.“Equitable considerations”         favor
                                                   as the Department of Public Welfare
reimbursing de Mora.
                                                   imagines.     Reimbursement under the
       The Department urges us to reverse          particular facts of this case will be limited
the District Court’s decision because              to situations where 1) there has been a
“[a]lthough intending to constrain the             violation of IDEA and appropriate private
effect of its decision, the district court         services were provided, see Burlington,
instead identified considerations that will        471 U.S. at 370, 2) the amount of the
apply to virtually every successful                reimbursement is reasonable, see Florence
administrative challenge to an IFSP under          County, 510 U.S. at 16, and 3) a trained
Part C.” To the extent the Department is           service provider was not available so that
expressing a concern over the potential            the parent stepped in to act as the trained
financial burden on Bucks County, it is not        service provider and not as a parent.
a viable one. Bucks County had the
                                                            Finally, “equitable considerations
opportunity, upon de Mora’s request, to
                                                   are relevant in fashioning relief.”
provide appropriate early intervention
                                                   Burlington, 471 U.S. at 374. Bucks
services. If Bucks County had complied
                                                   County carries the burden of providing
with IDEA’s mandate, they “need not
                                                   appropriate early intervention services, but
worry about reimbursement claims.”
                                                   Bucks County failed to meet this burden.
Florence County, 510 U.S. at 15.
                                                   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
particular.” It is true that the Lovaas            detriment, or she could have found
program, like IDEA, envisions parental             appropriate replacement services. She
involvement. In particular, under the              opted to find someone to provide the
Lovaas program, parents are supposed to            Lovaas training. However, she ran into yet
reinforce the skills that the children have        another obstacle -- the one person she did
already learned from working with the              find could not work the hours that I.D.
therapist. Parental involvement in this            needed under the program to obtain better
capacity is designed with the aim of               results. De Mora could not find another
generalizing skills the child learns into          provider to work the remaining hours so
unstructured daily activities. O. IVAR             she chose to train in discrete trial
L OVAAS ET AL., T EACHING INDIVIDUALS              methodology and provide the therapy to
WITH DEVELOPMENTAL DELAYS, 311 (Pro                I.D. herself. She spent many hours in
Ed 2002) (see Chapter 32 titled                    training with Laudon and acted as an
“Involving Parents in Treatment”). Like            implementer of discrete trial therapy. “It
IDEA, however, the Lovaas program                  would be an empty victory to have a court
does not envision parents acting as                tell . . . [de Mora] several years later that
service providers, as de Mora did here.

                                              18
. . . [she] was right” but that she is not          reimburse Mrs. de Mora for her services
entitled to reimbursement for the time she          delivered directly to her child.
spent providing therapy. Id. at 370. If that
                                                              The majority cites no statutory
were the case, the family’s right to
                                                    provision or regulation authorizing such
appropriate early intervention services at
                                                    payment. The majority agrees with Bucks
no cost would be denied.
                                                    County that Mrs. de Mora does not fall
           V. CONCLUSION                            within the category of “qualified
                                                    personnel” as defined in the statute.
      For the foregoing reasons, we will
                                                    Instead, it bases its decision approving
affirm the District Court’s grant of
                                                    reimbursement to the mother of the
summary judgment in de Mora’s favor.
                                                    d i s a b le d c h ild o n “ e q u i ta b le
                                                    considerations.”
B U C K S C O U N T Y                   v .                 I am concerned that the majority
COMMONWEALTH OF PA                                  has set a precedent that opens a wide gap
                                                    between that w hich is prope rly
No. 02-3919
                                                    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
SLOVITER, Circuit Judge, concurring.                pains to limit the scope of its decision, and
                                                    in particular because of its conclusion that
       I agree with much of the majority’s
                                                    “a trained service provider was not
opinion in this case, and see no reason to
                                                    available,” I join its judgment, albeit with
repeat either the facts or the arguments of
                                                    reservations.10
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
                                                           10
paying Laudon for the services she                            I am personally familiar with
performed.      Although Bucks County               Bucks County. It is not in the
suggests that Laudon was not a qualified            wilderness. It borders the City of
professional because she had no training or         Philadelphia, and is home to numerous
experience in developing and imparting              fine hospitals, medical centers and
the requisite knowledge of the Lovaas               professionals. However, I have no basis
program to others, Bucks County does not            to dispute the majority’s conclusion that
challenge the administrative officer’s order        Mrs. de Mora could not find a qualified
authorizing repayment for Laudon’s own              professional. I have no personal
services. It does appeal, however, the              familiarity with the Lovaas program and
order of the District Court requiring it to         therefore do not know whether it is or is
                                                    not commonly available.

                                               19
