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Recommended Do’s and Don’ts for Meeting the Challenges of Transporting Children with Disabilities

By: Linda Bluth

10 December 2024 at 13:26

Meeting the daily challenges of transporting children with disabilities is real and
complex. These challenges are not new, but they are increasingly multifaceted. On top of the challenge list in many school districts is driver shortages, followed by the cost of transportation services. What can be overwhelming is the increase in competing priorities to safely transport children with disabilities.

The pressure resulting from how to accomplish safe transportation for these children can result in inadequate decision-making. Guided by the principles of safety, responsibility and entitlement under federal and state law it is imperative to aspire to respond to challenges for safe transportation of children with disabilities by timely addressing the “Do’s and Don’ts” under pressure. I am realizing more and more about the importance of knowing what is and is not required under the Individuals with Disabilities Education Act (IDEA).

In addition to federal law, it is critical to be well-versed about state law pertaining to the related service of transportation for eligible children under the IDEA. Under the
IDEA Part B regulations, transportation is defined as a related service that includes: “(i) Travel to and from school and between schools; (ii) Travel in and around school buildings; and (iii) Specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability.” (34 CFR §300.34(c)(16).

At first glance, this IDEA definition appears clear. In reality, unique individual child transportation requirements necessitate extensive knowledge about the related service of transportation and its explicit requirements.

Understanding the role of the individualized education program (IEP) team’s responsibility under the IDEA to develop, approve and implement the related service transportation is essential. Approved transportation services should always be documented in the IEP to avoid misunderstandings and potential IDEA compliance violations. The IEP team meeting should always include all the qualified personnel necessary to make an informed decision, including the parent.

Don’t make unilateral transportation decisions without the attendance of all stakeholders that are required for implementing an IEP. The following is an example of a costly mistake that happened multiple times during my career. The IEP team, under pressure from a single parent, required that a child be picked up first and dropped off last.

This was solely based upon the parent’s work schedule and not the needs of her child, based upon their disability. Unknown to transportation, the IEP team approved the request. It was not feasible to implement but still approved and written into the child’s IEP. The parent emphatically stated her request was “required under the IDEA.” The IEP team was intimidated and believed her.

This IEP decision resulted in a hearing officers’ requirement for the school district to add a new route to implement the approved IEP service. Can you imagine the unintentional effect of this IEP team’s unilateral decision? Make sure that the IEP team is fully knowledgeable about the IDEA transportation related service requirements, and do not make a decision based upon false information.

Another example of a costly mistake is when a parent at an IEP meeting claims, citing IDEA, their child is required to be transported to after-school care 17 miles away from
their home address. The IEP team unwisely believes the parent and approves their request.

The lesson to be learned is don’t believe everything that a person says without knowing how the IDEA addresses a specific issue. Be knowledgeable about what state law says on a specific topic and how the school district’s policies and procedures address the issue. In the previous example, it is likely that if the school district transports children without disabilities to requested after-school care or daycare, the school district will also be required to do so for children with disabilities as a matter of equity. These are just two examples of challenges whereby poor decision-making resulted in an avoidable costly error.

It is essential to know federal and state laws pertaining to transportation service eligibility requirements for children with disabilities. It is wise to rethink in advance
how to best provide these transportation services for children with disabilities. Utilizing school transportation data can improve decision-making. Accessing all funding sources helps to offset costly transportation services. One example is billing Medicaid when it is an allowable transportation expense.

Communication and coordination between multiple school district departments is key to problem-solving. It is key to be knowledgeable and current about best practices and school transportation literature concerning safe transportation of children with disabilities.

Editor’s Note: As reprinted in the November 2024 issue of School Transportation News.

linda-bluth Linda F. Bluth, Ed.D. is a national compliance and regulatory expert on IDEA transportation law and provisions. She is a tenured faculty member of the TSD Conference, a regular STN contributor, and a Hall of Fame member of the National Association for Pupil Transportation.

Special Education Attorney Navigates Legal Bumps in the Road for Student Transporters

School Transportation News

By: Eric Woolson

11 November 2024 at 04:00

FRISCO, Texas — Several federal laws that define the transportation of students with disabilities and special needs have been updated recently or may be amended soon demand the attention of school districts and private contractors, said a lawyer who specializes in the subject area.

Betsey Helfrich opened the TSD Conference on Sunday. She has successfully represented school districts against a variety of claims in state and federal courts as well as in administrative and special education due process hearings. She also conducts local and national training on Section 504 of the Rehabilitation Act of 1973 and all areas of the Individuals with Disabilities Education Act.

Helfrich began by pointing out changes earlier this year to Title IX, which is commonly associated only with women’s sports. However, the law has broader implications for sex discrimination in federal programs that also affect school districts and transportation departments.

The new guidelines took effect on Aug. 1 except in 21 states that filed lawsuits to block their implementation. Helfrich encouraged audience members to research the law’s current status in their states.

Noting that Title IX requires the investigation of sexual harassment or sexual assault complaints, Helfrich cautioned against rote practices that could create legal hazards for a district, such as coding into the discipline system an incident on the school bus as an “assault.”

“Be really mindful if you or a driver are writing and coding something as sexual assault or sexual harassment … that we are also passing that info along to our Title IX coordinator,” she said. “Don’t code something as sexual harassment and end it there.”

She also cautioned resting on the laurels of simply reporting it, for example to a principal. She advised ensuring an investigation is completed an that a Title IX coordinator has made a determination that the misconduct rises to a legal level. “Sexual harassment has a very specific definition. So, just because something inappropriate happened it must mean it rose to that level.” she added.

Every school that receives federal funds is required under the law to have a Title IX coordinator. An overhaul is likely coming to the Children’s Online Privacy Protection Act, or COPPA, which protects children under the age of 13 from the distribution of their personal information without parental consent. Proposed legislation would raise that age to 17.

“We should have new regs by this time next year. How does it affect your daily life? Probably not a ton, except it really impacts the vendors that we contract with that keep student information systems,” Helfrich said. “Our vendors are going to have to be very careful going forward after these new regs about the information they have. … We can only contract with someone who promises not to sell our students’ information to someone else.”

Like COPPA, the Family Educational Rights and Privacy Act (FERPA) protects the privacy of student data. Amendments are pending. Because the law was enacted in 1974 and sets guidelines for how records must be kept, its provisions largely revolve around the keeping of paper records.

“Hardly anything is paper anymore. We keep our records electronically, everything’s in the cloud, we have apps, we have student information systems, so FERPA really does need an overhaul,” she said. “There’s new proposed regs, nothing new right now, but keep in on your radar for next year. We might have some new requirements about how we keep records.”

Helfrich said a U.S. Supreme Court ruling about an issue totally unrelated to education could also have an impact on litigation involving school districts. The landmark case, Loper Bright Enterprises v. Raimondo, involved whether the National Marine Fisheries Service (NMFS) could require commercial fishing operations to pay the cost of government monitors assigned to their boats.

The justices concluded the NMFS did not have the power to make the rule, overriding the principle of the longstanding “Chevron deference” that directed courts to defer to an agency’s reasonable interpretation of an ambiguity in a law that the agency enforces.

“You might see more schools challenging statutes and regulations directly in court. It’s a little bit more school-friendly to not have Chevron deference,” she said. “So, what does that mean in the Department of Education? They might not have as much power to issue these guidance documents that schools have to follow.”

Free Appropriate Public Education (FAPE) guidelines under the Individuals with Disabilities Education Act (IDEA) require school districts to meet the unique needs of students with disabilities, including transportation. Of the 50.8 million K-12 students in the U.S. as of the fall of 2022, about 21 million rode school buses and approximately 7.5 million students were covered by the IDEA.

“It’s highly regulated and really unwavering,” she said. “There’s not a lot of flexibility with the IDEA,” Helfrich said. “It always goes back to FAPE.”

Meanwhile, Section 504, passed in 1973 as part of the civil rights movement, protects students and adults with disabilities from discrimination in places of public accommodation.

“Schools often say we don’t have to do this in our before-school or after-school programs because they’re voluntary, [for example] summer school, we don’t have to worry about that because it’s optional. That is definitely not true,” she said. “You see more cases in that area than really anything. If we opt to have a program, it has to be nondiscriminatory.”

The danger to school districts is that Section 504 “is loose-goosey, it’s not as regulated but it’s more dangerous” because it includes monetary damages for people who have been discriminated against.

“Parents can file discrimination lawsuits under Section 504 and seek monetary damages,” she continued.

The U.S. Department of Education’s Office of Civil Rights processed the highest number of such cases last year, resolving 45 percent more cases than the past record.

“It’s free to file. It’s very easy to file an OCR complaint. You don’t have to be represented by an attorney and then the OCR comes in and investigates. Let’s say an incident happened on the bus so they’re claiming discrimination against the bus driver. That driver will be interviewed. You as the director will be interviewed. The special education director will be interviewed,” she noted.

“Usually the superintendent, too. Anybody involved in this case will be interviewed. They always say, ‘Who is your 504 coordinator? Who’s in charge of investigating discrimination cases in your district?’” she continued. “And, literally, nine out of 10 times, the principal says somebody else, the counselor says somebody else, the bus driver says somebody, and the superintendent always says, ‘It’s not me. I don’t know who it is. It ain’t me’ and the OCR investigator is writing furiously. That is one easy thing to control.”

She urged audience members to return to their districts and train drivers about the district’s coordinator in case a parent mentions a potential disability complaint. Sharing that information on a single slide and keeping that slide “will go a long way to start out on the right foot,” she said.
Helfrich outlined a handful of recent court cases, including several that went against districts. She contended that the districts’ cases could have been strengthened by transportation departments being more involved in the writing of individual education plans.

Instead, all too often, those plans are written without such expertise and districts become locked into unrealistic requirements. And, many times IEPs include services that aren’t even needed yet lock the transportation department into expensive commitments.

“And once it’s in the contract, it’s there,” she warned. “Even if a parent is saying, ‘we didn’t want it’ at first, they’re going to want it.”

She cautioned case outcomes often tilt in favor of the parents of children with disabilities and special needs, particularly when school personnel mishandle interactions and neglect to properly document actions. “Juries and courts hate when schools say, ‘We don’t do that because if we do it for you, we’ll have to do it for everyone,’” she added.

Helfrich concluded with the joking rejoinder, “Do not let this scare you into resignation. Honestly, as long as you act reasonably, really think through, individualize, each student’s situation you honestly are going to be OK in this area. Keep your good common sense. Keep being good people, and it’s all going to be OK.”

The post Special Education Attorney Navigates Legal Bumps in the Road for Student Transporters appeared first on School Transportation News.

Special Education Attorney to Discuss Avoiding Legal Hazards of Student Transportation

School Transportation News

By: Ruth Ashmore

1 October 2024 at 20:52

Special education attorney Betsey Helfrich returns to Texas for the Transporting Students with Disabilities and Special Needs (TSD) Conference in November with an eye on providing the legal landscape to attendees so they can avoid figurative hazards in the road.

Helfrich has been bringing her legal expertise to TSD Conference attendees since 2019. With increasing diagnoses of students with disabilities, Helfrich aims to equip student transporters the knowledge necessary to determine exactly what they need in their toolboxes to safely transport these students to their destinations. She will be sharing analysis and impacts of recent case law as well as practical day-to-day procedures that can protect transportation departments, minimize liability, and provide the safest care for students.

Helfrich’s keynote “Transportation of Special Education Students: Avoiding the Bumps and Legal Hazards” will be held on Sunday, Nov. 10 at 9 a.m.

While analyzing the complex world of navigating federal regulations such as the Individuals with Disabilities Education Act for students with disabilities or special needs, bus schedules, driver shortages and substitutes, and the individual needs of the students, Helfrich will break down case law, providing real-life scenarios and rising challenges to provide attendees with the tools and knowledge they need to connect the dots between legalities and their day-to day operations.

Helfrich owns her own practice after formerly serving as the special education department lead for law firm Mickes O’Toole, LLC in St. Louis. She has experience representing school districts in state and federal courts and provides counsel and training on special needs matters, including legal precedents such as Section 504 of the Rehabilitation Act of 1973.

Save $100 on conference registration with the Early Bird Discount, valid through Oct. 4. Visit tsdconference.com to register and view the conference agenda. The TSD Conference will be held in Frisco, Texas, Nov. 9 through Nov. 12.

The post Special Education Attorney to Discuss Avoiding Legal Hazards of Student Transportation appeared first on School Transportation News.