When a child is denied a Free Appropriate Public Education (FAPE), the repercussions can be much greater than you might expect. While the obvious results of a poorly written Individualized Education Program (IEP) are a lack of education, there can be a more serious consequence in the form of injury to the student. When injury occurs there are two separate areas of law that need to be examined, 1) Special Education Law, and 2) Personal Injury Law. It is important to bring this up because each area of law has different rules and regulations including statutes of limitation.
Special education claims through the Individuals with Disabilities Education Act (IDEA) have a statute of limitations of 2 years. Injury claims, in California, fall under the California Tort Claims Act and only have a six month statute of limitations to file a claim against a public entity. If your child was injured in school, make sure you research your State’s law regarding filing injury claims against a public entity and discuss your case with an experienced attorney specializing in personal injury cases.
I was recently involved in two cases were the child with an IEP was injured at school. The first one involved a child with multiple disabilities including a tic disorder. The child was allowed to use a cross training elliptical machine unsupervised and ended up with a broken ankle. The second involved a student in a Special Day class for students with Emotional Disturbance; the student was beaten until they were unconscious by another student in front of two classroom paraprofessionals. Both of these incidents were much more complicated than I explained above, however both were a direct result of a poorly written IEP. While I was brought in to help restructure the IEP and help negotiate additional services and placement, I am not an attorney. This is why I highly recommend discussing any injury that occurs at school with an attorney who specializes in claims for damages against a public entity.
What I hope parents can learn from both of these incidents is that safety should be a high priority when writing an IEP. No child should have to endure pain and suffering because the appropriate safety measures weren’t built into an IEP. The game of “let’s wait and see if this works” is not appropriate when dealing with any child’s safety let alone a child with a disability. In my experience it is much simpler to get safety accommodations for those students with an IEP that might inflict harm on others than those that might be harmed themselves. Some of the safety topics that should be addressed in the IEP are the child’s physical limitations, bullying and placement in a dangerous environment, to name a few. This is when it becomes even more crucial for the parents to advocate for their child and make sure an appropriate IEP is written before an injury occurs.