Michael P., aka “the Plaintiff” alleges that his IEP promised safe transportation including a “driver who would not open the bus door until Michael P.’s aide was ready to assist him.”  The suit alleges that the student “threw himself off the bus” when the door was open and the aide was not ready, landing face first on the pavement and sustaining serious injuries. Ouch. 

It’s unusual for an IEP to be that specific about safety measures, but Michael had a cognitive disability and Down Syndrome, a lack of regard for his safety and a history of elopement, including running off the bus. That’s why the IEP was so specific.

The suit alleges disability discrimination in violation of Section 504 and the ADA, and the federal court declined the school district’s Motion to Dismiss.  The case will continue, but to prevail in this case the plaintiff has to show that the district was “deliberately indifferent.”  If the court ultimately concludes that this was simply a momentary lapse in judgment, a moment of negligence, the student will lose the case.  But the court held that the failure to implement a part of a student’s IEP could be characterized as “deliberate indifference.” So it was too soon to toss it out of court.

Pretty clear lesson here.  Pay attention to those IEPs and 504 plans. Not only will doing so avoid legal problems. It will also keep kids safe. 

It’s Michael P. v. East Stroudsburg Area School District, decided by the federal court for the middle district of Pennsylvania, and cited in  Special Ed Connection at 81 IDELR 248.

DAWG BONE: READ THE IEP CAREFULLY.  IMPLEMENT FAITHFULLY AND COMPLETELY.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: can an educational institution be “willfully ignorant”?