Federal
Court Rules Parent May Be Compensated For ABA Services for Own Child
Note:
This article is from Mayerslaw.com.
A link to the Bucks County decision is at the end of the article.
In what apparently is a case of first impression nationally, the federal
district court in Philadelphia (Schiller, J.) held that under appropriate
circumstances, a parent who is compelled to provide a portion of their
child’s “appropriate” Applied Behavior Analysis (ABA)
intervention program may be compensated by the local educational agency
for the value of such service. (A link to the full text of the District
Court’s decision in Bucks County Department of Mental Health
v. De Mora is at the end of this summary.)
While
the District Court held that the federal IDEA statute is broad enough
to encompass direct compensation to parents, it cautioned that its
decision would be limited to the situation where (a) the local educational
agency fails to provide a free and appropriate public education, (b)
the parent supplies services which are established to be “appropriate,”
and (c) the parent receives training.
The
holding in Bucks County can thus be viewed as a natural extension
of the prior holdings of the United States Supreme Court in cases
such as Florence
County v. Carter, which have held that parents may be
reimbursed for the cost of securing private service providers where
there is a showing that the educational program offered by the local
educational agency is not appropriate, coupled with a showing that
the services provided by the private provider are appropriate (assuming
that there is no equitable bar to such relief).
To our knowledge, the Bucks County decision is the first court decision
decided at the federal level that has held that under appropriate
circumstances, parents may be directly compensated for having to fulfill
ABA intervention services that the school district should have been
providing.
Background
In Bucks County, the Commonwealth Court of Pennsylvania had
previously held that Bucks County had failed to offer an appropriate
educational program and that the Lovaas-style ABA program put together
by the child’s mother was appropriate.
On remand, the local level hearing officer held that the child’s
parents should be reimbursed for the cost of the child’s private
“Lovaas” (ABA) consultant and that the child’s mother
should be paid approximately $6,000 for having provided a portion
of the ABA intervention time under the training and supervision of
the private ABA consultant and supervisor.
Bucks
County appealed to the federal District Court from that determination,
but only with respect to the local level hearing officer’s holding
that the child’s parent should be directly compensated for the
time she had spent providing ABA therapy to her child under the direct
training and supervision of the private ABA consultant/ supervisor.
Parent as
ABA Therapist
In this connection, the child’s mother put in an affidavit demonstrating
that she had attempted to secure additional (private) ABA service
providers, but that she was unable to do so. Thus, the record showed
that the mother was compelled to become an ABA instructor to help
to fulfill the balance of the ABA intervention time (which the Commonwealth
Court had already held was “appropriate”).
In
Bucks County, the District Court approved the mother’s
hourly rate of $22 per hour, which was approximately half the hourly
rate charged by the ABA consultant/ supervisor. The local level hearing
officer specifically found that the mother’s hourly rate was
within “market.”
Significantly, the District Court held that it was irrelevant that
the child’s mother was not “certified” or licensed.
As the District Court explained, under Carter,
it was not even necessary for the ABA consultant supervisor to be
licensed or certified by the State of Pennsylvania, with the sole
inquiry being whether the services were “appropriate.”
The District Court held that it did not even have to reach the appropriateness
issue, as it had already been determined by the Commonwealth Court
of Pennsylvania, and there had been no appeal taken on that issue.
The
Bucks County decision, in the absence of controlling authority
to the contrary from a state’s highest court or one of its own
federal courts, is now precedent across the country. However, it is
important to understand its limitations.
Limitations
The District Court’s decision does not stand for the proposition
that parents should expect that they will be compensated by school
districts for having entirely home-grown ABA programs.
Nor does it stand for the proposition that parents will be compensated
for acting in the role of “parents.”
Rather, it provides a potential remedy for parents who are left with
the “Sophie’s Choice” of directly fulfilling ABA hours,
or having their child go without.
Practical
Tips
Parents
faced with a Bucks County type situation should consult with
their own counsel, but should probably treat the situation as if they
had to go out and hire private providers.
By way of example, assume that a school district offers an IEP providing
for a 35 hour per week ABA program, but fulfills only 25 hours per
week of direct service hours, claiming that they cannot find additional
therapists to fulfill the rest of the “direct” intervention
hours. To the extent that the parent can afford to do so, the parent
should first try to find outside therapists who are ready, willing
and able to fulfill the balance of the ABA hours. If the parent cannot
afford to hire outside therapists and thereafter seek reimbursement,
or if the parent, after diligent efforts, cannot find additional,
“outside” ABA therapists, the parent might then make plans
to directly fulfill the balance of the ABA hours, under the training
and supervision of someone with an appropriate level of expertise.
A parent who wants to preserve any hope at this kind of a claim clearly
must keep excellent records of their time by date, hours provided,
and what "programs," etc. were worked on. In other words,
parents should keep track of their intervention time as if they were
private providers. At the very least, when the district claims that
they are fully responsible for the child's progress, the parent can
whip out the data which proves the parent's contribution.
It is important to keep the district informed and, as noted above,
it is essential that parents consult with counsel before going this
route.
Unanswered
Questions
One unanswered question in the wake of Bucks County is how
courts might apply statutes of limitation and the doctrine of laches
to bar direct compensation claims brought by parents for earlier time
frames.
What if, for example, a parent already brought and won a Carter-type
reimbursement case for the 2001-2002 school year but made no claim
to be compensated for ABA hours directly supplied by the child’s
parent (because there was no clear authority from a court allowing
such relief)?
Once again, it is essential to consult with counsel, as these considerations
will vary from state to state and from district to district. It also
is important to understand that the Bucks County decision is limited
in its applicability, and that parents need to be prepared to meet
the standards set out by the district court.
For
the full text of the District Court’s Decision in Bucks County,
please click on the link below.
Download
the Bucks County Decision (Adobe PDF - 784 KB) from Mayerslaw:
http://www.mayerslaw.com/downloads/MAYERSON_DECISION_10-4-02.pdf
Gary
Mayerson
Gary
Mayerson is a well-known attorney who has represented parents in many
high-profile cases, including a 27-day due process hearing in Zachary
Deal v. Hamilton County Department of Education. Read his analysis
of Deal
v. Hamilton County Dept of Educ.
Gary
Mayerson, Esq.
Mayerson & Associates
250 West 57th Street
Suite 624
New York, NY 10107
Phone:
212-265-7200
Website:
http://www.mayerslaw.com
