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Injury To Children Attending Special Education Classes

The Individuals with Disabilities Education Act, "IDEA", 20 U.S.C.S. 1400 et. seq., provides that all persons with qualifying learning, mental health and/or developmental disabilities, have a right to receive a free appropriate public education, beginning at age 3 1/2 and until the student reaches his or her 23rd birthday, which adapts a student's academic curriculum and may include related services designed to meet the student's unique needs, so as to prepare them for employment and independent living.

A special education student's unique needs are identified in the student’s Individual Education Plan, "IEP", at a meeting of a team of persons, including teachers, psychologists, therapists, parents, student and advocate, to determine what related services are needed and the number of hours each such service, in order for the student to meet his or her academic goals. Such related services are paid for and provided by the school district. The IDEA requires that IEPs and related services be regularly updated each year. The date and time for such meetings are proscribed by law as part of the due process related to special education services, and require timely notice to the student, his or her family and any advocate.

A special education student who is injured while attending his or her special education classes may have a claim against the School District for such injuries. If the student is also in foster care, special rules apply. Please see our Areas of Practice, Foster Care Injuries, above.

In all cases of injuries to special education students, Government Code §911.2 requires that in order to seek compensation for such injuries, the student must file a Tort Claim against any prospective government entity defendant, not later than 6 months from the date of injury, or it is forever barred. Government Code §911.4 allows the filing of a Tort Claim against a government entity defendant not more than a year from the date of injury in cases of mistake or inadvertence in the filing of the claim within the 6 month limited time. Government Code §911.4(a)(2) provides a special tolling provision for the filing of such actions on behalf of foster children.

Upon settlement of such a claim, a court supervised Probate Code §3600 Special Needs trust is typically required in order to exempt the recovery from calculation as a “resource” for continued SSI and Medi-Cal eligibility.

*The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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