Season 3: Episode 9: The Wheels on the Bus Go Round and Round
As we all know, special education students often have disability-related needs outside of the traditional classroom setting. In the transportation context, however, some circumstances can challenge even the most experienced special education administrator or transportation supervisor. For example, does a district need to provide door-to-door transportation or is curb-to-curb enough? What happens if a teen with a disability keeps missing the bus? How should a district handle a student whose bus behaviors present safety concerns for other children?
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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.
Lisa: I’m Lisa.
Miriam: We are attorneys at Walter | Haverfield in Cleveland, Ohio. Every so often we get together. We talk about the latest in Education Law, the latest legal updates that are relevant to school board members, administrators, teachers, and just really anybody who works with the kids in our schools.
Lisa: Today we are going to dive into some legal questions that we get often from administrators generally relating to transportation and our students with disabilities. With us today, we have John Moenke, who is a third year law student who also has a background in special education and as an administrator. So welcome, John.
John: Thanks for having me.
Miriam: Excellent. I think most of our audience is familiar with IEPs and Special Education Law and we’ve had a few episodes on this topic previously. An IEP is an Individualized Education Program for students who have special education needs and who qualify under the IDEA, which is a federal law relating to disabilities. Most of the time IEPs include specially designed instruction such as perhaps reading instruction or specially designed instruction in behavior or math. But IEPs, those individualized programs, can also include transportation services. For some children, their disability is such that they need specialized transportation. This, of course, can be anything. This can be a nurse on the bus, this can be a wheelchair for children who have physiological or medical needs requiring a wheelchair. It can also be just an aide or assistant or even a behavior plan. Some kids, we’ll talk about have behavioral issues that require a behavior plan for them to be able to be transported on a bus.
Lisa: Right. Basically, a student who has a disability and because of their disability really needs the district to provide some sort of transportation so that they can attend school and actually receive their services.
John: Transportation services then are going to cover a variety of needs more to the individualized student requirements.
Miriam: Right, exactly. Even though, just as John said, those transportation services are going to look different for each child based on his or her needs, we do get very common questions. We do get common questions from our school districts about those transportation services, and we’ll talk about some of them today. John, why don’t you go ahead and start us off with a typical transportation question about that.
John: Sure. Say we have a fourth-grader with an intellectual disability, has transportation on their IEP. Mom is requesting door-to-door services. Is that necessary or is curb-to-curb fine?
Lisa: We get that question a lot.
Miriam: Yes. First of all, curb-to-curb refers to dropping off a child on the bus at a stop that’s not exactly at their house. It’s just near their house. Maybe on the corner of the street. Whereas door-to-door refers to dropping off literally in front of the house. I think this is a great question because the answer is just like what we said, it really depends on the child’s individual needs. Sometimes those needs are not obvious. For example a school district might say, “Look, there’s no physiological barrier here to mobility so the child can walk from the corner of the street to his house. There’s really no reason that we should have to drop off right in front of the door.” But at the same time, if a child has an intellectual disability or behavioral issues, it’s possible that they’re not going to make it. They’re not going to have those skills to know how to walk, and why to do it, and how to navigate just the road from the corner drop-off to his or her house. And in that case– I guess what I would say is if the parents can make a good case that her bus request is due to the child’s special needs or safety concerns, if that’s what’s driving her request, a hearing officer or a court or the Office for Civil Rights will typically side with the parent in that scenario.
Lisa: Yes, absolutely. We also sometimes get questions about our rural areas where there are a lot of hills or the roads aren’t necessarily paved, and how does the district navigate whether or not they have to get to the child’s actual house. For example, for a situation that would need curb-to-curb and would the physical restrictions somehow excuse the district from their transportation requirement. And really, the answer is generally, “No.”
Lisa: That’s not going to be an excuse. The district really is going to have to work to figure out a solution to that and how they can still meet that child’s needs and get them from home to school to receive their services.
Miriam: Yes. Basically if transportation is on the child’s IEP, the district is going to have to figure out a way. That might mean a different kind of vehicle or an assistant to help the child maneuver from where the bus or the vehicle can drop him or her off to the home. The district will typically be on the hook regardless of the terrain of the area.
Lisa: Yes, agreed.
John: This next one comes up all the time. Ninth-grader with autism, severe behaviors, starts acting up on the bus, hitting, pushing, kicking, swearing, screaming, the bus driver’s complaining to the school, other parents are calling in. How long does this– When can the school say, “Mom, you have to drive this kid”?
Miriam: Never. Right? Never.
Lisa: Generally, never. If that child has been identified to need transportation, the district is going to be responsible for providing that. Whatever means necessary. The team’s really going to have to look at what does that child need to be successful during that transportation. Does the child have behaviors or a functional behavior assessment and responding behavior intervention plan that the bus driver needs to be aware of? Perhaps that child needs an aide that will implement some of the behavior plan interventions on the transportation. The team definitely needs to be having those conversations.
Miriam: Yes. I think that this is a common question because it’s a difficult one. If you have a child who’s putting other students in danger or even putting the bus driver himself or herself in danger, districts really have to think about what their options are. I know that there are more common solutions to this problem. Then there are also less common solutions. I just wanted to talk through some of those more common ideas that the districts have implemented to work with kids who have severe behavior issues on the bus. Include conducting an FBA. I think we talked about FBAs previously in this podcast. It stands for Functional Behavior Analysis and it’s basically a detailed observation done by a behavior specialist that takes a look at the reason behind the child’s behavior and hypothesizes about what is needed to change that behavior. This can be done either by a district employee who goes on the bus and watches the child, observe the child, or an outside consultant. In some situations it’s beneficial to actually travel with the child on the bus several times and observe and provide recommendations for a behavior plan or what is actually needed to help this child manage and control his or her behaviors.
Lisa: Yes. That’s a really important piece is we often see children who do have FBAs and BIPS develop, but they don’t specifically look at the environment of the transportation.
Miriam: On the bus. Right.
Lisa: If that’s where you’re seeing behavior issues, you’re certainly going to need to include that environment within that initial Functional Behavior Analysis, but then also the plan. You’re not going to be able to just simply do that without seeing that environment and what those conditions look like.
Miriam: Sure. I think just to piggyback off of that some kids really need specially designed instruction in bus conduct. Aside from a behavior plan, some kids might really benefit from explicit instruction. What to do in this area that might be new for them. If it’s a kindergarten child, a really young child or sometimes an older student who doesn’t have those skills, it might be very important just to actually train them on what we do on a bus.
Lisa: Right. What the expectations are and what that needs to look like.
Miriam: There’s many other accommodations and modifications that school districts have tried. Having an aide on the bus. Having a monitor that’s specifically trained in this child issues. Some kids who have sensory concerns are helped with a weighted vest that maybe calms anxiety about travel and transportation. Sometimes social stories for children who have autism. Sometimes social stories works really well. Then there’s also the less common solutions that I think we should mention. I’d like our audience to keep in mind that the less common solutions come with some degree of risk. You should always be speaking to your attorney if you’re considering one of the less common solutions to best behavior problems.
Lisa: By that you mean things like harnesses.
Lisa: More things that fall into an analysis where you need to look at the restraint component.
Miriam: A harness would be kind of a specialized of seat that essentially restrains the student from unsafe movement. It’s not considered an impermissible restraint by the Office for Civil Rights because it’s part of transportation in a vehicle. But it’s always best to have parents on board with the type of harness used. It’s always very important to have parents involved in that decision because you don’t want parents to come back and say, “Look. My child was trapped in this seat and it was unsafe, and I didn’t know about it.” You always want to make sure parents are involved in that kind of thing.
Lisa: Absolutely. Sometimes too you need to look at is a typical school bus, the appropriate transportation. Perhaps they need to be on a van with less students or even further and need to have individualized transportation, so that’s not very common, but there definitely are circumstances that do lead to that responsibility of a district.
Miriam: Absolutely. Individualized transportation, just one on one transporting the child. That can sometimes happen as well.
John: There could be some questions about least restrictive environment in that situation, so that’s probably why it’s less common and schools need to be aware of that.
Miriam: The parent can come back and say, “Look. I really wanted my child to learn how to get along with other kids. That’s part of his or her IEP, and now they’re on a bus where there are no other kids or in a van with no other students.” That’s a dialogue that you need to have with the parents before changing a child’s bus placement if transportation is on the IEP.
Lisa: All the more reason all these conversations that really need to be had as a team, the IEP team getting together and really determining what does the child need and articulating and specifying all of that on the IEP, so it’s really clear what the team has agreed to. Parents has notice of it and is aware of the reasons and where the team lands with all of that. One other piece too I wanted to point out too is we do have sometimes some unique circumstances where a parent may end up transporting the student, and we have seen situations where we look at specific transportation agreements with the family on a really case by case basis where it’s really unique circumstances to keep that child safe and still provide them with transportation to get them to school, so we have seen that.
Miriam: I think that’s very unusual and I think that the most important thing to remember is that these agreements with parents must be voluntary. There’s really never a time when a district can tell a parent that, “That’s it. We wash our hands off your child. If you want them to get to school. You need to do it.” We can pretty much never say that. You must never say that.
Lisa: You certainly can’t force the parent.
Miriam: Even if you do have an agreement with the parent for transportation for reimbursement, that agreement really needs to be well-documented, Lisa.
Lisa: Absolutely. I think those definitely are going to be when you’re talking to your council and figuring out the nuances of what that needs to include, and making it really individualized for that student.
Miriam: Typically, those transportation agreements documents thoroughly that the student is eligible for transportation and the parents understand their rights, but they prefer to transport in exchange for reimbursement, and then the reimbursement schedule and the way to calculate reimbursement is laid out very clearly in that agreement. It’s typically also attached to a prior written notice, which we always emphasize in this podcast.
Lisa: It’s really important for our listeners to understand this is not a typical situation. These agreements really aren’t readily offered to parent and are not just because a parent is requesting, “I prefer to transport my child.” It’s really based on need and mutual agreement between the district.
Miriam: One thing I just want to quickly jump in here is sometimes we get questions about what this reimbursement looks like, how much should you reimburse. Typically, I think districts offer the standard IRS mileage reimbursement, and then sometimes you’ll have a situation where a parent agrees to that initially, but then says, “Look. This is my time. I should be getting paid per hour. I should be getting 8.50 or whatever is the minimum wage in your state to transport my child.” There’s no requirement to do that. School districts are not obligated to pay per hour, but at the same time, parents are not obligated to transport their child. If a parent, at any point, says, “You know what? I’m done with this arrangement. This is not worth it for me. You’re not going to pay per hour so I’m not going to transport my child.” The obligation transfers immediately to the district to start transporting that child.
Lisa: That’s really the key point. The obligation never really left the district from the beginning, right? It’s the district’s responsibility, so if you’re in a situation where you need to work with a parent to figure out a creative solution, that is an option available, but it really is nuanced and rare and districts need to remember they can’t force a parent to do that in any means.
John: Let’s go back to this high schooler with behavioral issues. If those behaviors are occurring in school, there’s procedures that a suspension could come. Can we just suspend him from the school bus or does that bring up FAPE issues?
Miriam: That’s an excellent question. I don’t know about you, Lisa, but I get this all the time. Some times school districts call us in advance and they’ll just say, “Hey. Look. We’re seeing some behavior issues. How should we handle this?” Very often we’ll get districts who say, “We suspended Bobby from the bus for his behavior. Is that okay?”
Lisa: Yes and no. Suspension from a bus and transportation is going to fall into any other discipline, so it’s going to invoke your day towards needing to do a manifestation determination and all of those rights that go along with that.
Miriam: I just want to remind our audience. A manifestation determination review, we talked about this a few episodes ago, and that’s the process by which an IEP team meets to determine whether the conduct that resulted in the discipline is actually a manifestation of the child’s disability, and if it is, if the child is acting out on the bus because of his or her disability and it’s actually a manifestation of that disability, then in many circumstances, you’re not going to able to discipline for that conduct over the 10 requisite days.
Lisa: Those initial days, prior to reaching the 10th, you can do your typical discipline like you would for any other student for conduct issues, and there’s not going to be an obligation to provide an alternate type of transportation just during those initial days.
Miriam: Unless you are also doing that. Unless your district does that for non-disabled students, yes, of course.
John: High schoolers miss the bus. Say we’re still with this ninth grader with autism, transportation is on his IEP, bus driver goes, not there, keeps going, mom’s calling saying, “Turn around. Come get my son right now.” What does the district do?
Miriam: I just want to comment on this. I have a teenager. I have teenagers in my house, and I just want to say that they miss the bus more often than they make the bus, so it’s not a problem that is unique to any population. Kids with disabilities miss the bus just like kids without disabilities. I would say that typically, if the child is just missing the bus every once in a while occasionally, the district does not have any obligation to go back and pick up the kid, turn the driver around, make everybody late, do a second run. There’s no obligation like that, but I think it just makes sense that if this is happening frequently, if the child is tardy frequently, then the team should meet. The IEP teams should meet, get together and talk about whether the student’s tardiness is perhaps somehow related to his or her disability. There’s situations that we’ve seen kids who have a medication change and now they’re more tired in the morning or they might have some school anxiety that’s going on because of something else that’s going on in school. It’s always a good idea to meet if you see the lateness and tardiness is becoming a problem.
Lisa: Also a piece to that is keeping in mind does the child, because of their disability, require more time to get ready and to navigate from their house onto the bus or even at the end of the day from the classroom to get onto the bus, and if so, the district is going to have to adjust for that additional time in some way to make sure that the child can–
Miriam: I think that leads nicely into our next question.
John: Perfect transition. Can we just end their day a half hour early so that there’s the time to pack up, get ready, get settled?
Lisa: The simple answer is no. The key thing is you need to make sure that the student isn’t missing any instructional time. If there is an instructional time that peers are getting, we can’t delve into that and have it interfere to accommodate the transportation. But that being said, we can also look at what does that day look like? Does the child have a study hall at the end of the day? Is there another way to provide additional service at a different point in the day? There are some creative ways to work with that, but the key piece is really paying attention to them not missing other instructional time or other services that they’re entitled to.
Miriam: If the child does need a shorter day to receive a free appropriate public education though, that is definitely a modification that the team can decide to make. Is that right?
Lisa: Yes. Again, these are all going to be really nuanced and…
Miriam: Individualized issues.
Lisa: Case by case.
Miriam: Case by case, I would say.
John: Say we have a student with an IEP under IDEA, transportation not identified. on the IEP. So this is a little different than the ones we’ve been talking about before. Parents have been taking the kid. The school typically doesn’t transport unless it’s on the IEP, but something comes up. The car’s breaking down, they can’t get them there anymore. What now for the district?
Miriam: We do get this question sometimes too, so that’s an interesting one. Let’s say the child has an IEP for reading or math. Transportation is really not an issue so it’s not on the IEP, but then the parents call and say, “Hey, our car broke down. If you guys don’t figure out a way to get him here to school, Bobby’s not going to get to school and he’s not going to have the services on his IEP.” I think that is an interesting nuance kind of question. Typically, if transportation is not on the IEP, then school districts are not obligated to transport.
Lisa: Right. The one thing the team is going to need to have some discussions about though is are we looking at one week, are we looking at a couple months that this child wouldn’t have difficulty getting to school, and what does that mean for their other services? Is that going to interfere with their receipt of FAPE because of the transportation issue. So it’s not going to be just cut and dry that the district is not responsible. It really needs to be discussed and considered more in depth.
Lisa: Yes. I would agree with that. I think it’s a conversation that you need to have with your team after some point of missing school.
John: My favorite question of the episode, “Vision-impaired student with a service dog.”
John: “Do we have to transport the dog? What if other students are allergic or afraid of dogs? What if there’s an emergency? What do we do with this dog?”
Miriam: I think that’s a good question because some kids really are afraid of dogs. When my kids were a little, they were petrified of dogs. Now we have a dog.
Lisa: There’s also going to be some nuances too with, is it actually a service dog? Is it an emotional support animal? If it’s a service dog, does the child need that animal to be at school with them to receive FAPE? Then, we’re looking at, does the district need to provide some training or any preparation for the bus driver? This might be one where we’re looking at, is the typical bus appropriate? Is there another means of transportation that’s appropriate? Also, whether or not you need to consider the other students, like you said. If the other children are afraid of the dog, you do, probably need to notify those families in advance that that will– if you’re agreeing that the child and the dog will be transported together.
Miriam: I wouldn’t name the child.
Miriam: Yes, when you’re letting other parents know, don’t give out any information about the child that needs the dog. Just let them know generally that this is the situation, there will be a dog on the bus.
Lisa: Right. You’re certainly going to consider other students’ needs too. If you a child who might be allergic to dogs, how are you going to accommodate that for that student as well?
Miriam: I would probably say that the children who are allergic or afraid should be moved as opposed to the child, who needs the service animal, to be moved. Do you know what I mean?
Lisa: Yes. I would generally agree.
Miriam: Yes. Then, obviously, teams have to talk about what does the service animal need to be safe on board, how will the animal enter and exit the vehicle, if a special mat or extra space is required. Those are all good conversations also to have with your IEP team.
Lisa: Absolutely. Remember to be documenting all those conversations.
Miriam: Definitely, document everything in a private notice.
Lisa: Thank you, John, for bringing some of these questions to us today. We’re really appreciative.
Miriam: Yes. Thank you so much for joining us.
John: Thanks for having me.
Miriam: And to talk about transportation issues. Next time please join us to talk about IEP questions. Your top IEP questions will be answered and, in the meantime, please rate us highly on iTunes, Stitcher or wherever you get your podcast. We love all your mail, so send us more mail. Have a great day.