HomeSpecial NeedsTSD Conference Keynote Speaker Helfrich Discusses IEP, IDEA Liability

TSD Conference Keynote Speaker Helfrich Discusses IEP, IDEA Liability

FRISCO, Texas — During the 2019-2020 school year, 14 percent of all public school students in the U.S. received services under the Individuals with Disabilities and Education Act (IDEA), special education attorney Betsey Helfrich told attendees on Friday of the Transporting Students Disabilities and Special Needs (TSD) Conference.

IDEA is a federal law first passed in 1975 that all schools must follow. It states that children with disabilities receive special education and related services, with transportation at the top of the list, for access to a free and appropriate education so their unique needs are met. Meanwhile, Section 504 of the Rehabilitation Act of 1973 states school districts receiving federal funding can’t discriminate against qualified students with disabilities. This applies to all aspects of school, including transportation and other programs like athletics, clubs, and field trips.

Helfrich went on to discuss several legal cases involving Individual Education Programs (IEPs), in which student needs weren’t being meant. She noted that while transportation representatives can’t be present in every single IEP meeting, she suggested that transportation teams should still be informed, and communication should be ongoing. Plus, transportation should have a say in what services can and cannot be accomplished.

She noted that during and after the IEP meeting there needs to be a clear expectation of what is accepted by both the parent and the school district team, including transportation. For instance, is the transportation team and the parent on the same page when it comes to what curb-to-curb bus pickup really means? She added that while there is no legal definition of curb-to-curb, what matters is the understanding of everyone involved in the planning.

She added that in Missouri where she practices law, parents can now record IEP meetings. That practice can differ from state to state, so know the local privacy law, she advised.

Helfrich noted that IEP teams are required to meet at least annually. However, she said if transportation needs to call a meeting at any other point, they are entitled to do so. She advised having a clear written understanding with the parents, and to be upfront with them if something unexpected happens. The IEP might need to be slightly altered from time to time, for instance when COVID-19 largely impacted education and school transportation.

She said that while it’s amazing what educators and transportations staff have accomplished amid the ongoing pandemic, schools have lost any leniency from federal regulators and the courts. They are required to uphold IEP standards once again. She reminded attendees that Long-COVID, or the long-term effects of COVID-19 after the virus runs its course, could qualify for a disability under IDEA. However, she added that it doesn’t mean individuals with such conditions automatically qualify.

She added that changes are expected, especially during this unprecedented time with the bus driver shortage. And while there is no law on how long a school must take to make these changes, lawsuits are taking place. Parents are suing over lengthy periods in which transportation hasn’t come for their child and no communication was taking place, despite school districts needing the extra time to figure out new routing schedules.

She said a delay in transportation could cause students to regress, or for students who need consistency, anxiety can result when asked to get back on the school bus. Even though there is a driver shortage, Helfrich noted that IEPs need to be upheld, as to avoid liability. However, she encouraged communicating with parents every day, explaining to them the situation, what transportation is struggling with and being honest.

She added that much of the time, transportation decides a course of actio, but the parents are left in the dark. In those instances, lawsuits can result. She added that the length of ride for students with disabilities still also needs to be considered and not forgotten. There is no federal law for the length of ride, though states might have laws on how long a student can be on board. She added that the instructional day cannot be shortened in response to longer bus rides.

Betsey Helfrich speaking to attendees at the TSD Conference.

She said the transportation department can ask but not force parents to transport their children in lieu of the bus. If parents decline, transportation teams need to respect that decision and make other arrangements for the child. However, if parents agree, Helfrich said an agreement should be written up by the transportation department that the parent then signs.

The agreement should include information stating the parent is volunteering to transport their child, the parent’s vehicle is up to date on its inspections, the parent is not an employee of the school district, and the parent agrees to be reimbursed for mileage on the days they drive their child. Helfrich noted that this option should not be offered to parents who the districts do not believe are physically or mentally capable.

For students protected under the McKinney-Vento Homeless Assistance Act, she recommends an assessment be performed every year to determine if services still are required. However, if a child finds a permanent home mid-year, keep transporting them until the end of the school year, she advised.

Helfrich added that it’s okay to ask for help. She encouraged attendees to champion their bus drivers and request aides be added to routes when additional sets of hands are needed to manage the students. She noted that under IDEA, it’s never an excuse for the school administration or school board to say that placing aides on the bus is too expensive or not within budget. For instance, if a student needs access right away to a school nurse in class, they might also need access while onboard the school bus. She said to ask driving staff if they need an aide on the bus because it’s too late once there is litigation in place, or a child gets hurt.

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In closing, Helfrich said that training goes a long way in protecting drivers. She advised transportation managers to keep every record of the training that took place and who participated in it. If a safety training video is shown to the entire team, she advised having each team member sign a piece of paper saying they were in attendance so there is no confusion on who was there and who wasn’t.

This includes training drivers on how to properly use child safety restraints. She noted that students with disabilities are being restrained by other means at a higher rate, but those options should only be used as a last resort.

Always think about how a change will affect students with disabilities. Are we following their IEP? Don’t be afraid to reconvene, she concluded.

Patricia Thomas, director of transportation for Richland School District in Washington state, flipped through her pages of notes as she discussed how informative the presentation was. Thomas attended the conference in 2019 and saw Helfrich speak there as well. She explained that what really stuck with her, was that there is federal funding available to hire and retain school bus drivers.

Thomas said having this extra federal funding available will help with finding alternative ways in transporting students with disabilities.

Josy Campbell, operations manager for Harrison School District 2 in Colorado, has been coming to the TSD Conference since 2013. She said Helfrich’s talk pinpointed her focus on the liability of not upholding an IEP. She noted that hearing about other legal actions in other states and school districts would help her prepare and bring information back to her district so that her team escapes the ramifications. She said Harrison School District prides itself on doing the right thing, so hearing this information about what not to do will only make her district better.

Campbell noted that as she continues her 21-year career in transportation, she wants to continue to be an advocate for students with disabilities and has made special education transportation her specialty.

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