Opinion

Frivolous Claims in Special Ed Cases: DC v Jeppson
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 hear sounds, but M.J. couldn't distinguish between different sounds she could now hear. The inability to distinguish sounds is a common problem previously deaf people face after receiving cochlear implants. To learn how to interpret sounds requires specialized training different from teaching a deaf child how to function in a hearing world. The stay-put provision provides that during any further proceedings, the child must remain in the current educational placement until a decision is made. M.J.’s parents and educational team had serious reservations about the new DCPS program and the motivations behind moving M.J. from her current placement to the DCPS system. D.C. is well-known for the large dollar amount spent per student head, but most D.C. residents believe the D.C. public schools lag far behind their private and suburban public school counterparts in student educational outcomes. The hearing officer found that DCPS did not meet its burden of proving that their plan was more appropriate for M.J. than the private school placement, and ordered 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 a public school system’s choice of action and use of resources. DCPS could have chosen to spend their monies on developing a program within their hearing impaired school specifically designed for children with cochlear implants to learn how to distinguish sounds. DCPS could have waited another year until its speech and language program was in place, and requested the following year to reevaluate M.J.’s plan to see if the DCPS program met her IEP goals and objectives. It didn’t seem to occur to DCPS that the money spent on attorney salaries and fees could have been better spent on improving their programs instead. Instead, DCPS spent its money on more court costs. They appealed to the U.S. District Court to force M.J. into the DCPS hearing impaired program. Most egregiously, DCPS asked the court to require M.J. to refund the money DCPS spent on M.J.’s education during the stay-put period during the parents appeal, even though DCPS paid the private school directly and never gave the money to M.J. in the first place. In short, DCPS was asking for the court to treat M.J.’s private education during her appeal as if M.J.’s private school education were a personal choice, and not a requirement of the stay-put provision of the IDEA. Rightfully so, the court considered DCPS motion for summary judgment as moot –DCPS was supposed to pay for M.J.’s education through a stay-put provision as clearly stated in the IDEA for any attorney to read. The court described multiple lower and Supreme Court cases supporting how it was clearly inappropriate for DCPS to ask for their money back for educating M.J. during the appeal. Clearly the IDEA and prior case law supported the parents, as the DCPS attorneys could likely see in their research.

The stay-put provision provides that during any further proceedings, the child must remain in the current educational placement until a decision is made.
The DCPS plan meant moving M.J. from her familiar school to a new DC public school. It meant restructuring M.J.’s Individual Education Plan (“IEP”) goals and objectives already established at her current school to one implemented by a new team. M.J.’s parents and educational team strongly disagreed with DCPS’s decision, and filed a due process hearing request; they also invoked the protections of the “stay-put” provision of the IDEA (20 U.S.C. § 1415(j)). The stay-put provision provides that during any further proceedings, the child must remain in the current educational placement until a decision is made. During the stay-put period, DCPS was required to prove that its placement would be more appropriate than M.J.’s current IEP plan at the private school. DCPS’s new program was designed for the hearing impaired. In order for DCPS to claim M.J. as one of its students, DCPS had to argue that M.J. was actually hearing impaired instead of unable to distinguish sounds. Clearly M.J. was no longer hearing impaired, thanks to her cochlear implant. M.J. needed experience interpreting what she could hear. She required pedagogical methods to teach her what the noises meant. In order for M.J. to receive the level of appropriate public education required by the IDEA, DCPS’s new program would have a program component for the newly hearing. However, the DCPS program only used teaching methods for the profoundly deaf, which are not the same teaching methods designed to help the newly hearing. Thus, M.J.’s legal team argued that the newly created DCPS hearing impaired program was clearly not intended for the newly hearing to handle their speech and language impairments.

Imagine how much money parents have to expend in attorney’s fees to rebut unsupported DCPS’s appeals against a hearing officer’s decision.
However, DCPS has deeper pockets and attorneys on staff who can drag on frivolous claims until DC parents are financially forced to accept DCPS placements. Imagine how much money parents have to expend in attorney’s fees to rebut unsupported DCPS’s appeals against a hearing officer’s decision. Even if parents try to hold DCPS for attorney fees because the parents are prevailing parties harmed by frivolously unsupported DCPS legal action, if the Court declares the DCPS motions as moot, then there is no “prevailing party” – no winner in a decision - and thus, no compensation for harassed families. Could M.J.’s legal team have asked for Rule 11 sanctions against DCPS for bringing a frivolous claim? Not likely. Note 5 in the opinion suggests that M.J.’s IEP can and will change in the future and that it is not possible to predict whether M.J.’s placement at the private school will be supported by future hearing officers. Thus, DCPS can bring frivolous appeals claims each and every year, even when the hearing officers support M.J.’s IEP placement at the private school. The only 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 and the citizens of DC are the losers financially. The only winners in this decision are the attorneys. By Melissa Ngaruri

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