I need some legal advice for my younger brother in a wheelchair.?
Hello everyone,
To give everyone some background, my younger brother, John, was born with a form of muscular dystrophy called spinal muscular atrophy or SMA for short. This disease causes the muscles in the body to slowly shut down. From his lower jaw down, his muscles over the years have just given out on him, to lift a plastic fork could take as long as 5-10 minutes with both hands if indeed who can do it. He sleeps on 3-4 different machines at night to help him breathe. He also has a feeding tube in his stomach to give nourishment as he doesn’t have the capability of not chocking his own saliva, let alone eating. He has been in a wheelchair since the age of 1.
Now 13, he has the muscular capability of a 2-3 month old infant. However, this hasn’t stopped him from wanting to be like everyone else. After being home schooled his whole life, he decided last year that he wanted to be able to go to school with his friends. So he started school several months ago, and is excelling, when he is able to go.
From day one, a very mean, impatient, and careless bus driver has hurt him by driving carelessly, harassed him, will not listen to anything that he says. He is very fragile, and is not able to even lift his own head up if it falls to the side, let alone try to make himself safe with this woman driving. She hits curbs and takes the turns so fast that his head is constantly falling from one side to the other. This has been going on for awhile now, but the school staff with the exception of several staff members who work closely with these kids with the special needs take the drivers side. When it was brought to their attention that there were problems, the supervisor called in the driver, who denied everything and said my brother was lying. The staff members who work with the special needs children have heard the same report from other kids of being yelled at, harassed, and physically injured from other children, and have at times witnessed it. Yet the school will not assign another driver to the route, and defend this woman by saying she is one of their best drivers.
We have been taking him every morning since then when we can in our wheel chair van, but the transmission recently has gone out and his only option is to ride the bus.
My mother was called to the school today because my brother was in tears after again being mistreated by this woman. It was raining this morning, so to protect his electric wheelchair, my mother covered him up so everything would stay dry, as the slightest bit of water will cause his chair to malfunction. Once on the bus, the driver removed the cover against my brother’s wishes, and hit the button to turn off his chair accidentally. When he asked her turn it back on, she remarked "It was probably you that did it, I know nothing about this wheelchair." When my mother got the school my brother was in tears, he was soaking wet from the rain, as was his chair, and they could not get him off the bus.
Again, she has hurt other students, both verbally and physically. Once we get the new van we will start taking him again, but this could be months. I understand that all the buses have cameras on them, but they have no audio, and many times the cameras are not even on.
We have pleaded with the transportation supervisor, and nothing has been done. My family wants to take legal action against the driver and the school. What kind of lawyer would we seek? Also, what sort of charges can be brought up on them? Something needs to be done before my brother, or someone else’s child gets seriously injured.
Thank you in advance for your help.
Have you gone to the superintendent of the school to complain and describe what has happened? Check with your state to see the wire tapping law and if you have one where one party to a conversation can tape or if you have to have permission of everyone taped. If it is enough for one party to agree, put a tape recorder on the student to go to school and arrange for a sibling or someone else to turn off the tape and to put it back on for the way home. That way it is recorded what happened on the bus. However, in some states recording others is illegal. Like in Ohio and Arkansas, one can tape, but in PA or FL they cannot tape any audio without getting permission. ou should be able to look up your state on the internet and run it down on wire tapping law. You need to check with your state.
Another thing you can do is ask that your student be assigned a personal aide. His handicap should require one. The federal handicap law and many state laws require that a student be permitted to attend school and must be provided with whatever is necessary to enable the student to be in the least restrictive environment.
You go to the superintendent (assuming you are in the US) and tell him/her what is happening and that the child has been placed at risk. Tell them that the law requires that the school provide what help he needs to be in the least restrictive environment and he does fine at school but he needs some help with the bus and with classes and needs a personal aide provided by the school. You should get one. If not, contact an attorney who works with special needs situations. It is a specialty. . You could contact the state bar association to ask about any experts in school law and in special needs law.
If your child required a private school with overnight care and even in another state, the state would be required to provide it if that is how he would have to learn. or that is my understanding of it. This is not a legal opinion. You need a licensed attorney in your state but not just any attorney is familiar with what you need so look for one well versed in special needs law. You might try the state teachers association — like the "state" education association or "state" teachers association and ask them about their attorney and contact them to see about special needs attorneys. They work with school law every day and have a good handle on school law and the attorneys who work with law.
If you pesonally know a special needs teacher and can talk privately, they might be able to give you some advice (off the record). You should get a copy of the law about special needs. Americans with Disabilities Act, I believe is the federal law. The state law may be a section number. You may be able to find it on the internet by looking up special needs law.
Parents need to know their rights as they are the ones who need to stand up for the kids. Many teachers would love to help defend them and help but they can’t as their jobs may be on the line so parents need to take this all the way to the school board if the superintendent doesn’t do anything. And then they need to go to court to require proper placement and the help the student needs. if the child were hurt, you could sue the driver and the school (where the money is likely to be – though no public scohol has enough money).
Good luck to you. There is no way that this driver should be driving so fast as to take curbs, though it can happen. But should not be messing with the kid’s wheelchair. There really should be an aide looking out for the child and it would assist the driver too. it is difficult for a driver to deal with driving a bus and taking care of a special needs child. it isn’t fair to expect that and an aide should be there to assist. Think about a driver having to drive and pay attention to traffic and having 20 or more kids behind them and being responsible for what the kids do as well as driving and getting everyone on or off the bus, including handicapped students. Not fair for driver or the student. The charter schools and private schools take money away from public schools and make it more difficult to have the staff needed. Parents have to make sure the needs are met by the schools.
Good luck again.
Unfortunately, you have two problems.
First, the school district itself has qualified immunity from suit, which makes it very hard to sue them unless you can prove intentional misconduct – not just neglect or negligence.
Second, almost all school boards are Democrat controlled. As a result, they *almost* invariably require that their bus companies hire Union drivers. Again, this makes the drivers virtually impossible to sue, or to discipline, re-assign to a different route or fire, again, unless you can prove intentional harm to a child, not just negligence or incompetence.
Obviously, the driver finds it inconvenient to have to deal with your brother and his wheelchair, so she’s going out of her way to make his life miserable in the hope that he’ll either arrange other transport or go back to being home-schooled. Unfortunately, this is a common aspect of having to deal with unionized employees.
This doesn’t mean there’s ‘nothing’ you can do, just that it’s going to be very difficult. You are going to need to find a lawyer familiar with the various laws concerning the rights of the disabled in public schools. That’s a specialist field, and one that I’ve had little contact with (except when a union driver or teacher goes far enough to cross the line into actually criminal behavior.) but a search for disabled activist sites online will probably point you in the right direction.
Richard
I would press charges against the woman and sue the bus company!! Contact an attorney. I think someone also needs to beat the hell out of that woman!!