Peggy A. Burns, Esq. | Contributor

This installment of “Through the Rearview Mirror” focuses on cases involving special needs transportation.

Maneuvers and Equipment
A Colorado district’s decision to transfer a student to a Convaid model stroller for transportation was upheld in Boulder Valley Public Schools, 106 LRP 39908 (March 7, 2006). A stand-pivot-transfer maneuver to a bus seat was not successful for this student, and threatened his safety and that of transportation employees. The hearing officer found that FAPE does not require the district to maximize the student’s potential via transportation, but only to provide access to the educational program.

In P.T. v. Jefferson County Board of Education, 46 IDELR 3 (June 28, 2006), the 11th Circuit affirmed an Alabama district’s use of a harness on a school bus. A 5-year-old student with a diagnosis of autism had experienced increasing tantrums, which could not be controlled by an aide and a lap belt. Other options were considered and tried. The district used an H-type harness which “was not in the nature of a straightjacket, as described by the plaintiff, but more in the nature of a harness used in a child seat.” The harness was effective in preventing the child from getting out of her seat or removing her shoes to throw. The court noted that “special transportation is a related service … [and] is … conceptually distinct from ‘special education’ or ‘specialized instruction’ itself … [S]pecial transportation … provides access to the educational setting. However, transportation is not the educational setting itself …”

And, Speaking of Access
In Olathe Unified School District No. 233, 106 LRP 60785 (Aug. 30, 2006), the Office for Civil Rights determined that a school district provided adequate transportation for a student with disabilities despite its refusal to establish a requested crosswalk. The district had balanced the parents’ request against potential safety issues that might be caused by an unusually-placed crosswalk. OCR found that the district had not denied or limited access to school.

A State Level Review Officer (“SRO”) held, in Maple Heights City School, 44 IDELR 237 (Ohio State Educational Agency, Jan. 27, 2006) that parents had convincingly demonstrated their child needed transportation because of her cognitive impairments. The SRO found that the ability to navigate a mile on foot did not necessarily mean that the child had the ability to find her way from point A to point B.

Eagle County Sch. Dist. RE-50J, 46 IDELR 176 (SEA CO 2006) involved a decision to deny transportation for a preschool student with a speech and language disability where an agency did not provide transportation to any preschool students. The boy’s working parents were unable to provide transportation from the elementary school at which he receives special education services twice a week to his day care. Extended school programming was not available, and the parents claimed that a family friend, who had been transporting the student, could no longer do it. The district rejected parents’ suggestions that the student’s IEP services be provided at his day care, or that it allow DR to ride in a regular school bus that services the general (non-preschool) population.
The ALJ determined that the IDEA requires that transportation be provided as a related service if necessary for the child to access FAPE, regardless of the specific nature of his disability. In such cases, the parents would bear the burden in the Colorado case of proving “that the need for unique transportation is not the result of their personal convenience or preference.”

Employee Action and Inaction
In Wapakoneta (Ohio) City Sch. Dist., 46 IDELR 168 (Jan. 5, 2006), the OCR determined that a change in transportation arrangements was not retaliatory. Three districts participated in a partnership to provide special needs transportation. Each year, the three districts met to decide the most economical and feasible arrangements, and entered into one-year contracts. In 2005, a parent complained about a driver’s inappropriate treatment of her child. The business manager investigated, and notified the parent that the investigation had failed to support the allegations. At the end of the year, a new contract was implemented as more feasible in light of changing circumstances. Despite the fact that the student’s ride was longer, the basis for the change was non-retaliatory.

Exeter Township School District, 106 LRP 20048 (Pennsylvania State Agency, Feb. 8, 2006) involved an informal decision by the driver, the teacher, and a paraprofessional to substitute their own strategies rather than implement a behavioral plan in a student’s IEP. The “unilateral supplanting” of the student’s IEP and positive behavior management plan constituted a denial of FAPE.

Drozdowski v. City of South Lyon, 2006 Michigan App. LEXIS 1686 (May 18, 2006) involved student loading. A student with special needs boarded the bus and subsequently fell while walking to his seat. Although his parents claimed that the district and its employees exhibited gross negligence, there was no IEP requirement that the boy be physically escorted to his seat while boarding. The employees were immune from liability under state law because the fall did not occur in connection with use or operation of the school bus, and because they were acting within the scope of their employment.

Administration of Medication
And, be alert to potential “copycats” of an Ohio case involving a kindergartner prone to seizures. In Lancaster School District Support Assn., OEA/NEA et al. v. Lancaster City School District, 2006 Ohio App. LEXIS 5502 (Oct. 24, 2006), educational aides objected to the possibility that they’d be called upon to administer the drug Diastat rectally to a student if he had a seizure in the school bus or at school. The argued that this would constitute the unauthorized practice of nursing under the state’s Nurse Practice Act. The court declined to render a decision because the student had moved by the time of the lawsuit, leaving the question unanswered.

Burns is an attorney and consultant and owner of Education Compliance Group, Inc. She is the editor of Legal Routes, and developer of two video training programs, “Steering Clear of Liability: Training for School Bus Drivers, and “Confidential Records: Training for School Bus Drivers” and co-author of School Bus Stops: A Safety Guide for Transporters. She can be reached at 888/604-6141, and by email to ecginc@qwest.net.

Source: School Transportation News, February 2007. All rights reserved.