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1 Know When to Walk Them, Know When to Bus Them: A Guide to Transporting Students with Special Needs.

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Presentation on theme: "1 Know When to Walk Them, Know When to Bus Them: A Guide to Transporting Students with Special Needs."— Presentation transcript:

1 1 Know When to Walk Them, Know When to Bus Them: A Guide to Transporting Students with Special Needs

2 2 Know When to Walk Them, Know When to Bus Them: An Administrator's Guide to Transporting Students with Special Needs April 5, 2013 11:00 a.m. to 2:30 p.m. Deborah R.G. Cesario “These materials have been prepared for the CASBO Annual Conference. They have not been reviewed by State CASBO for approval, so therefore are not an official statement of CASBO.”

3 3 Transportation as a Special Education Service: Legal Requirements Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq. Right to Free Appropriate Public Education (FAPE) – Special education and related services at no cost to parent, that meet state standards and conform to student’s IEP. 34 C.F.R. § 300.17 Transportation as a Related Service – Transportation as a developmental, corrective or supportive service must be necessary to assist eligible students to benefit from their educational programs. 20 U.S.C. § 1401(26); Education Code § 56363(a)

4 4 Special Education Transportation Defined Special education transportation is defined as: 1)Travel to and from school and between school; 2)Travel in and around school buildings; and 3)Specialized equipment if required to provide special transportation for eligible students. 34 C.F.R. § 300.34(c)(16)

5 5 Specialized Equipment Transportation Specialized equipment may include: Safety devices, curb cuts, specialized seats, harnesses, locks, handrails, walkers, wheelchairs, scooters, golf carts, climate- controlled or light-controlled vehicles, two-way radios or phones for emergencies, emergency medical equipment, or any other specialized equipment necessary to provide transportation to eligible students. A specialized equipment list for transportation should not be considered exhaustive. Letter to Smith (OSEP 1995) 23 IDELR 344

6 6 Least Restrictive Environment  Least restrictive environment applies to transportation services as well.  It is assumed that most children with disabilities will receive the same transportation provided to nondisabled children, consistent with the LRE requirements in 34 CFR § 300.114 through 34 CFR § 300.120, unless the IEP team determines otherwise. Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46576 (2006).

7 7 Least Restrictive Environment In providing or arranging nonacademic and extracurricular services (which include transportation), each eligible student must participate with nondisabled students in such services and activities to the maximum extent appropriate to the needs of such students. Each District must provide supplementary aids and services determined by IEP team to be appropriate and necessary for each eligible student to participate in each nonacademic setting (including transportation). 34 C.F.R. § 300.117

8 8 IEP Process Transportation Needs Individualized Determination – Student’s IEP team must determine the transportation needs of eligible students on a case-by-case basis, and not automatically based on student’s type of disability or type of student’s placement.

9 9 Discussion of Transportation Should Follow Selection of Educational Program Transportation is appropriate for discussion only after an educational program has been selected. Early consideration of transportation prevents consideration of full range and scope of transportation needs that may be implicated.

10 10 Discussion of Transportation Should Follow Selection of Educational Program Will placement involve more than one building or one facility site? Will supplemental programs, especially outside of regular day be included? The IEP team must be in possession of the details concerning both the length and location of the educational program before it can determine the logistics of an appropriate transportation program.

11 11 Determining a Student’s Unique Need for Transportation Unique Need Transportation must be provided as a related service only if the student’s disability causes a “unique need” for some form of specialized transport.

12 12 Unique Needs Unique needs may be either: 1)Related to the ability of a student to get to school or use transportation; or 2)Related to availability of appropriate program outside of local school area.

13 13 Unique Needs Unique needs may include, but are not limited to: Medical diagnosis and health needs Physical accessibility of curbs, sidewalks, streets, stairs/elevators Age of student Student’s cognitive ability, adaptive behavior and/or communication skills Implementation of behavior intervention or behavior support plans during transport

14 14 Unique Needs (Continued) Distance between home and school and duration of bus ride Nature of the area(s) through which the student must pass Availability of other forms of public assistance in route (e.g. crossing guards, traffic lights or public transportation) Transportation needs during the day (to services off campus and while on campus) Please refer to IEP Team Checklist for Determining Student Transportation Needs (located in the Appendix) for additional factors to be considered by the IEP team in determining potential need for transportation services.

15 15 Questions to Ask at IEP Meeting Regarding Transportation Needs Practice Tip: Ask the following questions to determine whether transportation as a related service is necessary: –Do the student’s needs result in an offer of FAPE at a site other than the school of residence? –Do the student’s disabilities make it problematic to get to school in the same manner as his/her nondisabled peers? –If yes, the IEP team should determine the specific transportation arrangements necessary for student to benefit from educational program. –If no, the District may offer the same transportation (or lack thereof) that is offered to the general education student population.

16 16 Transportation Options No transportation Regular school bus transportation Regular school bus transportation with supports Public transportation Transportation via taxi or specialized shuttle service Reimbursement for parent-provided transportation Transportation on a bus for special education students School-to-school transportation (e.g. from school of residence to school of attendance where appropriate program is located), home- to-school transportation, or transportation between school and non- district service provider (e.g. contracted OT provider or mental health services)

17 17 Drafting Transportation Services into an IEP Beware of just checking off box for transportation or noting generally that “transportation shall be provided.” The IEP should reflect all transportation provisions that the school district has agreed to provide and should describe the particular transportation provisions in the greatest detail possible. For example, the IEP should not simply state that transportation will be "door-to-door;" it should specify precisely at what location it will begin and end. Special equipment should be described by name. Aide support, specialized health care plans, behavior plans, and/or other supports required by student should also be identified in IEP.

18 18 Drafting Transportation Services into an IEP Specifying transportation details in IEP strengthens the offer of FAPE, helps team members understand exactly what must be implemented during transport, and can avoid misunderstanding. Schools will be held accountable for all that it has promised in the terms of these documents.

19 19 School District Transportation Policies In addition to complying with legal obligations, remember to check school district general and special education policies to determine if they contain any specific guidelines related to how and when transportation is offered to eligible students. For example, is door-to-door transportation based on need related to disability, or is there some broader entitlement? Does the District offer per policy transportation to afterschool daycare as a drop off?

20 20 Travel Training IEP teams should consider whether student’s unique needs requires travel training as part of the IEP. Under IDEA, travel training is specialized instruction that enables eligible students to develop an awareness of the environment in which they live, and to learn the skills necessary to move effectively and safely from place to place within the environment. 34 C.F.R. § 300.39(b)(4).

21 21 Section 504 Title II of the ADA The anti-discrimination protections provided by Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act must be considered for eligible students under IDEA and qualified disabled students under Section 504.

22 22 Section 504 and Title II of ADA Under Section 504, no eligible student, on the basis of disability, shall be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance. 34 C.F.R. § 104.4(a) and (b) The Title II regulations, at 28 C.F.R. § 35.130(a) and (b), create the same prohibition against disability-based discrimination by public entities. Under 34 C.F.R. § 104.4(b)(1) and 28 C.F.R. § 35.130(b)(1), a recipient public school district may not, directly or through contractual, licensing, or other arrangements, on the basis of disability, deny a qualified disabled individual the opportunity to participate in or benefit from an aid, benefit, or service.

23 23 Section 504 and ADA Under Section 504, transportation is considered a nonacademic service that must be provided as necessary to afford eligible students an equal opportunity for participation in such activity. 34 C.F.R. §104.37(a). No eligible student shall be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in the provision of transportation services. 34 C.F.R. §104.43(a).

24 24 Section 504 and ADA Under Section 504, a school district may not afford transportation to eligible students that is not equal or effective to that afforded to others 34 C.F.R. §104.4(b). Under Section 504, districts may not provide “different or separate” transportation services unless such services are necessary to provide eligible students with benefits as effective as those provided to others. Section 504 has its own “LRE” requirement. Per 34 C.F.R §104.43(d), school districts must operate their programs in the most integrated setting appropriate.

25 25 Section 504 For compliance with Section 504, when transportation is made available to general education students (whether home-to-school, after- school programs, extra-curricular activities or field trips), special arrangements must be made to ensure equal opportunity for eligible students to participate.

26 26 Section 504 Beware of blanket policies! District violated Section 504 where it had general policy to provide special van for certain disabled students when class went on field trip. IEP and Section 504 teams failed to make individualized determination whether student’s needs required specialized transportation. Also, if student’s needs required integration with typical peers, district should consider all options, including possibly integrating the special vans used. Hopkinton (MA) Public Schools (OCR 2007) 108 LRP 41626

27 27 Section 504 – Blanket Policies Policies or practices that excuse eligible students early from class at end of day to avoid student rush to get to buses are subject to compliance concerns, especially without individual determination that such an accommodation is necessary to address the student’s needs, and without consideration of alternatives. Sierra Vista (AZ) Unified School District (OCR 2009), 110 LRP 4669

28 28 Legal Issues Length of Bus Ride Neither IDEA or Section 504 specifically addresses appropriate length of bus rides for eligible students. –No bright line that determines reasonableness of travel time. Rather, case by case analysis. However, unusually long bus ride may either result in a denial of FAPE or result in a Section 504 compliance violation if there is a disproportionate effect on eligible students.

29 29 No denial of FAPE where Student had approximately 2 hour commute each way because: –Student was unable to show any physical, mental, emotional or behavioral reason why he couldn't tolerate the commute, and –Student did not demonstrate an inability to make meaningful progress in his education due to the commute. Oceanside Unified School District (OAH 2012) N2011120626, 112 LRP 14645 Legal Issues Length of Bus Ride

30 30 Legal Issues Length of Bus Ride Longer bus rides should only be considered when necessary to attend specific program that addresses the unique and individual needs of the student, and for which an appropriate program is not available at a closer location. (Parent may want school located further away, but if some concern about length of bus ride, then consider offering closer program if appropriate).

31 31 Length of Bus Ride Cost Considerations Cost may be considered in creating bus routes and deciding how to deliver transportation services. However, if transportation arrangements for eligible students are jeopardizing their educational opportunities, then school districts must correct the situation, even if it results in greater transportation costs.

32 32 Length of Bus Ride Isolated episodes where student is occasionally late and misses class time, and does not result in any appreciable educational harm, are not likely to result in finding of discrimination. Occasional equipment breakdowns, traffic detours or foul weather are acceptable as long as not habitual.

33 33 Bus Drop Off Issues “Door-to-Door” Transportation – Required? –No. Depends on the needs of the student as determined by the IEP team. Analysis to Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46576 (August 14, 2006) Parental convenience is NOT relevant to the analysis. Los Angeles Unified School District, (OAH 2009) N2008090736, 109 LRP 5807

34 34 Bus Drop Off Issues Consider, on a case-by-case basis, whether following criteria warrants provision of door-to-door transportation: –Student's age –Nature of the student's disability –The unique problems associated with the particular disability –Distance traveled between student's home and bus stop

35 35 Bus Drop Off Issues Consideration of factors to determine “door-to-door” transportation: –Nature, conditions of the route to be traveled from the home to the bus stop –Availability of public assistance on the route –Access to private assistance

36 36 Selection of Bus Routes Reassignment to an appropriate placement in school further away from parent residence may be justified if no evidence that student’s medical and behavior needs not impacted by further distance. Parents’ convenience preferences for closer school not relevant to analysis of FAPE for student. Los Angeles Unified School District (OAH 2009) N2009060473, 109 LRP 58085

37 37 Length of School Day In general, school transportation arrangements should not result in a shortening of the school day for eligible students. Changing the length of a school day should be based on an individualized assessment of each student’s needs and abilities. Blanket policy shortening school day whether based on availability of buses or providing special needs students early access to buses will be seen as discriminatory. Santa Monica-Malibu (CA) Unified School District (OCR 2011) 111 LRP 47653

38 38 Lifting Wheelchair-Bound Students Lifting students up stairs whether at school or at drop off point is not recommended. Lifting of students onto buses without lifts or in school setting without appropriate access for wheelchairs likely violates Section 504 “readily accessible” requirement. Fletcher (OK) Public Schools (OCR 2008) 108 LRP 67016 Also consider safety concerns for staff or personnel asked to lift/carry student.

39 39 Pre-School Transportation Issues If IEP team determines that transportation is required to assist preschool child to benefit from special education, and includes transportation as a related service on child’s IEP, then a district would be responsible for providing transportation to and from the setting where the special education and related services are provided. A district is responsible not only for tuition expenses, but also for transportation and any other related services a child might require to receive FAPE. Letter to Anonymous, (OSEP 2008) 50 IDELR 229

40 40 Daycare and Afterschool Activity Issues In general, unless a program is recognized by an IEP team as a necessary service to obtain FAPE, there is no obligation to transport students to private, after school programs. However, Districts may have policies about providing drop offs at child care. Policies that are facially neutral, and limit drop offs to inside district boundaries or within certain radius will likely be upheld. Fick v. Sioux Falls School District (8 th Cir. 2003), 337 F.3d 968

41 District did not deny FAPE to10 year old Student with autistic-like behaviors when it declined to transport him to his after- school program where he received 1:1 social skills training. Student’s mother claimed that her work schedule did not allow her to transport student, the accommodation request was reasonable, and student would loose out on the benefits he was receiving from the 1:1 assistance. ALJ found that –IDEA regulations do not provide for district-funded transportation to private after-school programs. –IDEA regulations only require transportation be provided to a student to address educational needs, and not to accommodate a parent’s convenience or preference. Los Angeles Unified School District (OAH 2012) N201204886, 112 LRP 48628 Daycare and Afterschool Activity Issues 41

42 42 Afterschool and Extracurricular Issues Provisions for “early” or “late” transportation made for general education students due to extra-curricular events should also include necessary provisions for equal opportunity to these events for pupils with exceptional needs who require special transportation.

43 43 Afterschool and Extracurricular Issues IEP team members must also determine whether any extracurricular activity is appropriately part of a student’s IEP and thus necessary for a student to obtain FAPE. If so, then transportation with appropriate supports may be necessary.

44 44 School of Choice/Open Enrollment If parents wish to benefit from a school of choice, they must abide by a District’s provisions, including requiring them to provide own transportation services. Garden Grove Unified School District (OAH 2009), N2009081095, 109 LRP 76221 School of Choice/Open Enrollment – where district policy is facially- neutral that parents are responsible for transportation of their children, then special education students are not entitled to transportation services unless their unique needs require assistance to get to school. Soquel Union Elementary School District (OAH 2007), N2006120082, 108 LRP 512

45 45 Transportation Administration Strategies Efficiency of a transportation system for special education is partly dependent on the location of program sites and the placements of students. California Department of Education (CDE) recommends districts and their transportation departments conduct a demographic and geographic review that analyzes the present locations of programs, program needs, and population served. CDE Special Education Transportation Guidelines

46 46 CDE Special Education Transportation Guidelines Coordination of student attendance calendars at all school sites that provide special education services is necessary to fully utilize transportation services and to minimize number of required days of service.

47 47 CDE Special Education Transportation Guidelines For unified districts, multi-track districts, and multi- district SELPAs, standardization of calendars should include coordination of starting and ending dates of school years, bell schedules (beginning and ending times), vacation/intersession breaks, staff development days, minimum day schedules, etc. Coordination should be done so that all significant transportation implications are addressed and resources effectively utilized.

48 48 Transportation Administration Strategies The qualified transportation provider can participate by either attending the IEP meeting or providing a written recommendation concerning the nature, frequency and amount of service to be provided to the child, which can then be incorporated as part of the evaluation report. Notice of Interpretation, Appendix A, Question 30, 34 CFR Part 300(1999 regulations).

49 CDE Special Education Transportation Guidelines School Districts should ensure that school bus drivers or other transportation providers are well informed about (1)protecting the confidentiality of student information related to special needs of individual eligible students who ride on school buses with their general education peers, and (2)possible strategies and assistance that may be available to drivers (e.g. use of aides). 49

50 50 Transportation Administration Strategies Appropriate Strategies to Consider (Per OSERS). Expanding Ridership of Small Bus Routes and Integrating Eligible Students into General Education Bus Routes. Especially when eligible students are at same location and same schedule. Possible Accommodations/Supports – Utilization of lift- equipped vehicle for regular routes, or addition of monitor or aide. Questions and Answers on Serving Children with Disabilities Eligible for Transportation – Office of Special Education and Rehabilitative Services (OSERS)(November 2009).

51 51 Transportation Administration Strategies Consider blending general education routes with special education routes for greater efficiency. Remember to have transportation personnel be aware of individualized supports for each eligible student while being transported.

52 52 District IEP Team Member/Transportation Department Discretion General rule is that a school district and its transportation department have discretion in arranging the specific logistics to transport students with special needs. The main exception to this general rule occurs in situations where the school system's choices affect an element of the student's educational program and result in the denial of FAPE or discrimination.

53 53 District IEP Team Member/Transportation Department Discretion Discretionary areas include: –Bus scheduling matters, including determination of bus route and timing of pick up and drop off. –Selection of bus stop. –Selection of bus driver and any other personnel who will assist the student during transportation. –Decisions about appropriation of resources used to provide that transportation -- private fleet versus contracting with companies who have independently owned vehicles.

54 54 District IEP Team Member/Transportation Department Discretion Caution: Be aware of how logistical decisions might impact student’s educational program that might result in denial of FAPE or discrimination claim. Transportation department must also consider implications of outsourcing on personnel/collective bargaining issues.

55 55 District IEP Team Member/Transportation Department Discretion Practice Pointer Practically, if a current arrangement involving transportation provider personnel is causing such a strain between the school system and the parents that it threatens to break down their working relationship, it may behoove the district to consider making simple adjustments where they would not cause an undue hardship and the district has the necessary resources to do so.

56 56 Thank you for attending!! Debbie Cesario Lozano Smith 9444 Waples Street, Ste. 285, San Diego, CA 92121 Tel: (858) 909-9002 Cell: (858) 761-7398 Fax: (858) 909-9022 Email: dcesario@lozanosmith.com


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