8/14/2019 Frivolous Claims in Special Ed Cases: DC v Jeppson

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The stay-put provision provides that during any

further proceedings, the child must remain in thecurrent educational placement until a decision ismade.

The hearing officer found that DCPS did not meet its burden of proving thattheir plan was more appropriate for M.J. than the private school placement, andordered DCPS to continue funding M.J.s education at the private school.

This is the point in the story where I wonder about the policy priorities behind apublic school systems choice of action and use of resources

DCPS could have chosen to spend their monies on developing a program withi

their hearing impaired school specifically designed for children with cochleaimplants to learn how to distinguish sounds. DCPS could have waited anothe year until its speech and language program was in place, and requested thfollowing year to reevaluate M.J.s plan to see if the DCPS program met her IEgoals and objectives. It didnt seem to occur to DCPS that the money spent oattorney salaries and feescould have been better spent on improving their programs instead.

Instead, DCPS spent its money on more court costs. They appealed to the U.SDistrict Court to force M.J. into the DCPS hearing impaired program. Mosegregiously, DCPS asked the court to require M.J. to refund the money DCPSspent on M.J.s education during the stay-put period during the parents appeaeven though DCPS paid the private school directly and never gave the money tM.J. in the first place

In short, DCPS was asking for the court to treat M.J.s private education durinher appeal as if M.J.s private school education were a personal choice, and not arequirement of the stay-put provision of the IDEA. Rightfully so, the courconsidered DCPS motion for summary judgment as moot DCPS was supposeto pay for M.J.s education through a stay-put provision as clearly stated in thIDEA for any attorney to read. The court described multiple lower and SupremCourt cases supporting how it was clearly inappropriate for DCPS to ask for themoney back for educating M.J. during the appeal. Clearly the IDEA and priocase law supported the parents, as the DCPS attorneys could likely see in theiresearch.

However, DCPS has deeper pockets and attorneys on staff who can drag ofrivolous claims until DC parents are financially forced to accept DCPSplacements. Imagine how much money parents have to expend in attorneys feeto rebut unsupported DCPSs appeals against a hearing officers decision. Even iparents try to hold DCPS for attorney fees because the parents are prevailinparties harmed by frivolously unsupported DCPS legal action, if the Courdeclares the DCPS motions as moot, then there is no prevailing party nwinner in a decision - and thus, no compensation for harassed families

Could M.J.s legal team have asked for Rule 11 sanctions against DCPS fobringing a frivolous claim? Not likely. Note 5 in the opinion suggests that M.J.IEP can and will change in the future and that it is not possible to predic

whether M.J.s placement at the private school will be supported by future hearinofficers. Thus, DCPS can bring frivolous appeals claims each and every year, evewhen the hearing officers support M.J.s IEP placement at the private school. Thonly thing the parents can count on is that this battle will continue

While M.J. won her battle to keep her education as is her right, her parents anthe citizens of DC are the losers financially. The only winners in this decision arthe attorneys.

By Melissa Ngaru

O p i n i o n

Frivolous Claims in Special Ed Cases: DC v Jeppson

DCPSs new program was designed forthe hearing impaired. In order for DCPSto claim M.J. as one of its students,DCPS had to argue that M.J. was actuallyhearing impaired instead of unable todistinguish sounds.Clearly M.J. was no longer hearingimpaired, thanks to her cochlear implant.M.J. needed experience interpreting whatshe could hear. She required pedagogicalmethods to teach her what the noises

meant.

In order for M.J. to receive the level ofappropriate public education required bythe IDEA, DCPSs new program wouldhave a program component for the newlyhearing.

Imagine how much money parents have toexpend in attorneys fees to rebut unsupported

DCPSs appeals against a hearing officersdecision.

However, the DCPS program only used teaching methods for theprofoundly deaf, which are not the same teaching methods designedto help the newly hearing. Thus, M.J.s legal team argued that thenewly created DCPS hearing impaired program was clearly notintended for the newly hearing to handle their speech and languageimpairments.

At the time M.Jeppson (M.J.), an early-deaf child, was growing up, no D.C.public school program existed for the hearing impaired. D.C. Public Schools(DCPS) funded M.J.s tuition to a private school for four years. Later,M.J., received a cochlear implant. The implant gave M.J. the ability to hearsounds, but M.J. couldn't distinguish between different sounds she could nowhear.

The inability to distinguish sounds is a common problem previously deaf

people face after receiving cochlear implants. To learn how to interpret soundsrequires specialized training different from teaching a deaf child how tofunction in a hearing world.

M.J.s parents and educational team had serious reservations about the newDCPS program and the motivations behind moving M.J. from her currentplacement to the DCPS system. D.C. is well-known for the large dollaramount spent per student head, but most D.C. residents believe the D.C.public schools lag far behind their private and suburban public schoolcounterparts in student educational outcomes.

The DCPS plan meant moving M.J. from her familiar school to a new DCpublic school. It meant restructuring M.J.s Individual Education Plan(IEP) goals and objectives already established at her current school to oneimplemented by a new team.

M.J.s parents and educational team strongly disagreed with DCPSs decision,and filed a due process hearing request; they also invoked the protections ofthe stay-put provision of the IDEA (20 U.S.C. 1415(j)).

The stay-put provision provides that during any further proceedings, the childmust remain in the current educational placement until a decision is made.

During the stay-put period, DCPS was required to prove that its placementwould be more appropriate than M.J.s current IEP plan at the private school.

The stay-put provision provides that during any further proceedings, thechild must remain in the current educational placement until a decision ismade.