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Competing Challenges

Weighing safety versus IDEA, Section 504 and Title II compliance requirements amid the school bus driver shortage

This year, I have had multiple conversations with school district transportation and special education personnel regarding safety versus the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and Title II compliance requirements. This led me to think more judiciously about the dilemma of safe transportation amid these federal regulations faced by school districts across our nation.

Clearly, the requirements for the provision of the related service transportation under multiple federal laws are not forgiving when a school district does not provide transportation services as documented on a student’s individualized education program (IEP) or Section 504 Plan. What are a school district’s options when weighting safe transportation services versus noncompliance for the failure to provide a student’s documented IEP or Section 504 transportation related service? This question is providing an exacerbating school transportation services predicament.

I have often received requests for my opinion regarding this complex and challenging issue. In all instances, I have recommended that the directors of transportation and special education meet with their supervisors and request legal counsel be apprised of the serious dilemma of safety versus IDEA, Section 504 and Title II compliance. It is essential that the superintendent of schools be fully informed of these discussions to provide plausible solutions and actions.

Personally, this is one challenge that I do not aspire to serve in an advisory capacity. I have suggested that it is wasteful to list a cadre of excuses why IEP transportation related services cannot be provided as required. It is imperative to review and analyze all potential solutions available to the school district for the remediation of children with disabilities transportation service failures.

This should be done timely, efficiently and effectively. In reality, the lack of school bus drivers, attendants and other necessary transportation personnel will not serve as an acceptable justification for the failure to provide the related service transportation, documented on an individual child’s IEP.

On March 24, U.S. Education Secretary Miguel Cardona provided in an eight-page letter addressed to educators and parents containing clear guidance to prioritize the needs of students with disabilities as society moves into a new phase of response to the COVID-19 pandemic. Distinctly, the message in this letter is summed up in the following paragraph. “It is important to remember that state and local educational agencies (SEAs and LEAs) are bound by federal laws, including Title II of the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Individuals with Disabilities Education Act (IDEA) to ensure the inclusion of students with disabilities, including those experiencing Long COVID, in our nation’s schools.”

When asked for guidance regarding the challenge of providing safe transportation versus IDEA, Section 504 and Title II compliance requirements, I recommend taking inventory of issues and concerns regarding safe transportation for children with disabilities versus compliance requirements, and determining if the difficulties encountered are isolated incidences or systemic and on-going noncompliance.

This is the first recommended step in developing a corrective plan of action. I have no knowledge of school district personnel currently incarcerated for school transportation noncompliance under IDEA, Section 504 and Title II. That being said, I am not supporting or suggesting that the failure to correct noncompliance is acceptable or without conceivable consequences. IDEA, Section 504 and Title II noncompliance can result in a formal corrective action plan including federal or state oversight and the award of costly compensatory services for missed instruction and related services. Planning ahead to avoid noncompliance is an essential positive action.

Respond timely, efficiently and effectively to school bus driver shortages and other transportation personnel vacancies by taking a closer look into industry recommended salaries and benefits. Diligently advocate for transportation personnel wages and benefits to be with the services provided in your location. Long term incentives should be well thought-out to reduce and eliminate personnel shortages. Too many drivers that I have spoken with voiced their opinion that employers lack respect for the job that they are asked to do, when it comes to monetary compensation and benefit packages. This message should be heard shared and addressed in order to bring about needed change.

Scrutinize school bus driver and attendant training to ensure that drivers are provided the skills required to transport children with disabilities that they are asked to serve. A driver contacted me recently and said that he has never driven a special needs route and was assigned to do so with no advance notification because another driver called in sick prior to the route start time. He shared his concern that he was untrained and unqualified. I was flabbergasted by his situation. I did suggest that he put in writing to his supervisor that he considered it a safety hazard to drive children with special needs when he knows he is untrained and unqualified. Unfortunately, the response he received from his supervisor was less than suitable, and the driver chose to resign and look for another position. This is a sad reality that is important to disclose.

Utilize all allowable school transportation options to serve children with disabilities. One of the most recent positive options to address school transportation driver shortage challenges is legislation passed in a number of states allowing “Alternative School Transportation” as a viable solution for transporting children with disabilities. It is essential that this option be optimized in accordance with ensuring compliance with federal and state law. It is essential that “Alternative School Transportation” makes certain that the same standards apply with respect to safety, IDEA, Section 504 and Title II compliance.

It has been brought to my attention that when special education personnel plan for students with disabilities and fail to communicate with transportation personnel, mishaps are more likely to occur. This summer, I became aware of a school district where compensatory services were to be provided to over 200 students in several different school locations. When the compensatory services plan was shared and adopted for implementation, the transportation director, for the first time, learned about the plan when copied in a message to principals and parents. I learned about this is-sue from a parent who called to ask for assistance. She stated that her child’s special education and related services compensatory plan could not be implemented, although it was already approved by the IEP team for this summer.

The reason this occurred was because there were no school bus drivers available to transport her child. The parent was told that the only way her child could receive compensatory services was if she provided the transportation her-self. She said this was not feasible. I was curious if transportation reimbursement was offered by the school district when she was asked to transport her child. She replied, “No.” Clearly this was in violation of the IDEA requirement to provide a free appropriate public education (FAPE).

Fortunately, I was able to assist her with receiving transportation services for her child and multiple problems were corrected. This blatant calamity of errors should never have occurred. When all is said and done, don’t underestimate the importance of having all of the required school district personnel work-ing together, prior to dissemination of the provision of compensatory special education and related services. It is critical to review school district policies and procedures to ensure that there is no compromise when it comes to providing safe transportation and compliance with the IDEA, Section 504 and Title II requirements. Don’t wait until a problem arises. Plan ahead by organizing and synchronizing school district safe transportation and special needs transportation to avoid noncompliance. School transportation will not be exempt from serving children with disabilities in accordance with IDEA, Section 504 and Title II compliance requirements. Now is the time to assess all thinkable options to avoid having to address safety versus IDEA, Section 504 and Title II compliance federal and state complaints.

Editor’s Note: As reprinted in the September 2022 issue of School Transportation News.

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