FRISCO, Texas – Special education law attorney Betsey Helfrich explained the implications of federal regulations regarding transportation of students with special needs and disabilities during her TSD Conference keynote, then she led a panel discussion on lessons learned from cases involving improper securement and supervision of students that led in their deaths.
Helfrich, who practices special education law in Missouri and Kansas, opened her keynote on Friday by noting that many people ask her why school districts need attorneys, to begin with, which elicited a round of laughter from the audience. She continued that with 15 percent of K-12 students nationwide protected by Individuals with Disabilities Education Act (IDEA) regulations, there is a lot for student transportation to know when it comes to the ins and outs of providing individualized service for students with various disabilities and special needs.
The beginning question, said Helfrich, should be, “Is transportation needed to provide a Free and Appropriate Public Education (FAPE)?” She also noted that Section 504 of the Rehabilitation Act of 1973 that prohibits discrimination against individuals with disabilities, is where claims are often filed because a student with temporary special needs was unable to partake in certain school activities. While IDEA was reauthorized in 2006, the U.S. Department of Education only announced in May 2022 that it seeks to amend Section 504 regulations, 45 years after the original publication. In either case, Helfrich voiced that many strides in technology and behavioral management have been made in recent years, which calls for a regular review of legal pitfalls.
Whether a student is protected by IDEA or temporarily by Section 504 regulations, Helfrich stressed the importance of putting transportation stipulations and procedures into the student’s Individualized Education Program (IEP), which means transportation must be a part of the IEP team decisions. Under IDEA regulations, transportation departments are responsible for not only the service of transportation but also for the specialized equipment needed, such as wheelchair lifts, harnesses, child safety restraint systems or if called for, adapted buses, or alternate vehicles.
Helfrich showed video skits that demonstrated the legal holes many districts dig for themselves when they say yes to transporting a student with the parent’s specific requirement before doing their legal homework. She also said unilateral decisions will lead to complications, whether they are made by the IEP team or the transportation department.
“504 and IDEA plans have to be individualized,” Helfrich explained. She encouraged attendees to never use a generalized plan based on the student’s disability. Instead, they should gather data, including observations of the student‘s health, mobility, gross motor skills, and evaluating the child’s needs with parents and the IEP team.
She cited cases where transportation felt forced to make a change in a child’s pickup location (i.e., curb-to-curb versus door-to-door pickup) and parents filed a compliant, claiming the IEP, which she noted is a binding contract, was changed without a meeting.
“It’s very difficult to take anything back, after it has been put back into place,” she said. However, if a student’s needs or other parts of the situation have changed, she said the first step is to reconvene the IEP team and discuss how to move forward. Otherwise, the school district must uphold the original agreement.
“Bottom line is, open the lines of communications before it is [covered] under the IEP. Once it’s in there, you’ve gotto do it.”
Following Helfrich’s keynote session, she was joined by TSD Conference Tenured Faculty members Peggy Burns and Sue Shutrump along with TSD advisor John Benish for a discussion on the importance of training and communication for not only district staff, but also third-party contractors, and that failure to do so has resulted in student fatalities.
Shutrump, the supervisor of occupational and physical therapy at Trumbull County Education Service Center in Ohio, served as an expert witness on the Susavage v Bucks County Schools Intermediate Unit 22 case, as well as other student with special needs fatality cases. She explained that there were multiple factors that resulted in the death of Cynthia Susavage, who was a 6-year-old student with Batten syndrome. She died in 1999 when she choked on her safety vest that wasnot appropriate for her neurological condition that prevented her from sitting upright on her own. Furthermore, the vest was put on backward, with the zipper against her throat and the straps used were taken from other pieces of equipment., Susavage was unable to remain upright on the bench seat. Shutrump said she should have been seated in a special car seat, which had been ordered by her therapist but had yet to be delivered.
“There is no remedy when a tragedy happens if we rushed it,” Helfrich noted.
Benish, the chief operating officer for Cook-Illinois Corporation, one of the largest family owned and operated school bus contractors in the U.S, observed that the pressure on school districts is often high to begin transportation services as soon as possible, but it’s imperative to speak up and ensure that the bus is fully and properly equipped before transportation begins.
Burns, a legal consultant and founder of the Education Compliance Group, also pointed out that the district was not absolved of responsibility just because the student was being transported by a third-party contractor.
“Delegation carries responsibility,” she said, adding that school districts cannot wash their hands after delegating the task. “Personnel still must be trained. The IEP team at the district can’t point fingers at the contractor if equipment and training is not adequate.”
Communication breakdown was a major factor in not only the Susavage case but other fatalities of special needs students, which often occurred because the school therapists and IEP teams were not communicating with transportation staff on what appropriate equipment and protocols were needed for the students, as well as training in what to do in cases of a medical emergency.
“Every decision is not yours,” said Shutrump. “Communicate if there are reasons that you can’t safely transport the students.” She noted that Susavage’s school bus driver had previously reported to the transportation supervisor that the girl could not keep herself upright.
The panel also discussed the recent case involving a New Jersey school bus aide who was charged with aggravated manslaughter after not realizing that 6-year-old Fajr Williams, had slumped forward, causing the 4-point harness that secured her to the wheelchair to become too tight around her neck, blocking her airway and resulting in her death. The aide, Amanda Davila, 27, was unaware because she was wearing headphones in both ears and was looking at her cellphone when Williams died.
Davila pleaded not guilty on Wednesday and refused a manslaughter plea deal that would have sentenced her to 10 years in prison.
Shutrump stressed that transportation cannot take anything for granted or assume that certain procedures are implied when creating a transportation plan, especially with students that have a high-risk for medical emergencies or students who are non-verbal and have limited mobility.
The panel concluded the session, saying that training and communication between the IEP team and transportation must be a constant process.
“You are school bus professionals,” said Benish. “You know your jobs and you have experience. Do not let administration tell you that you can’t be a part of the conversation. You are obligated to get the information- get it.”
Burns concluded stating, “Don’t let things fall through the cracks. Make sure that you know who is doing what.”
Shutrump echoed the sentiment saying that tragedies will continue if all responsible parties are not thoroughly educated and trained to safely transport the most vulnerable student population.
Related: School Psychologist Highlights Behavior Management Training for Students with Special Needs
Related: (STN Podcast E176) The Reason Why: Michigan Top Transportation Team + Susavage v. Bucks Revisited
Related: Liability of School Districts in the Transportation of Children with Disabilities
