School transportation legal issues: “Get on board.”

1. School transportation legal issues:“Get on board.” presented by Amy Peabody Assistant General Counsel Kentucky Department of Education

2. Today’s topics: Requested: Covered today: Transporting students with disabilities (main topic) Bus stop responsibilities, door-to-door requirements and student with disabilities, bus stop supervision requirements and options Provision of health services to students, in Kentucky and in other jurisdictions School district responsibilities and bullying Recent legislation affecting school transportation • Transporting students with disabilities • Bus stops situations • Bus accidents • Out of state travel and / or • Bullying on the bus

3. 504 • Section 504 of the Rehabilitation Act (29 U.S.C. 794(a)) requires local school districts to provide students with 504 plans (students who have a physical or mental impediment to a major life activity – including participation in academic, non-academic and extra-curricular activities) an equal opportunity to participate. • More information: http://www2.ed.gov/about/offices/list/ocr/504faq.html • If a school district policy allows for a non-504 “health plan” in place of a 504 plan, then the requirements of 504 apply to the “health plan.”

4. IDEA or IDEIA: Individuals with Disabilities Education (Improvement) Act • IDEA Part B: 20 U.S.C. 1400-1419; 34 C.F.R. 300.1-300.818; KRS 157.200 et seq; 707 KAR Title 1 • Provide FAPE: Free, appropriate, public education. • 707 KAR 1:002:“ ‘Individual education program’ or ‘IEP’ means a written statement for a child with a disability that is developed, reviewed and revised in accordance with 707 KAR 1:320.” • 707 KAR 1:002: “ ‘Related services’ means transportation and such developmental, corrective, or supportive services as are required to assist a child with a disability to benefit from special education.” • More information on transportation as an IEP “related service”: http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C12%2C.

5. ADA • Title II of the Americans with Disability Act prohibits discrimination by public entities (including schools). 28 CFR 35.130(a) and (b)(1)(i-v) essentially extends the anti-discrimination prohibitions embodied under Section 504 to all public elementary and secondary school districts. • More information: http://www.ada.gov/ and http://www2.ed.gov/about/offices/list/ocr/504faq.html

6. Investigations of compliance • U.S. Department of Education, Office of Civil Rights (OCR) investigates claims of disability discrimination or harassment which deny students equal opportunity to education under Section 504 or Title II of the ADA. http://www2.ed.gov/about/offices/list/ocr/aboutocr.html • KDE investigates complaints of violation of IDEA by Kentucky school districts. http://www.education.ky.gov/KDE/Instructional+Resources/Exceptional+Children/Formal+Written+Complaints.htm • Office of Education Accountability (OEA) investigates complaints of violation of any law by a Kentucky school district. http://www.lrc.ky.gov/oea/process.htm

7. Providing health services to students • KRS 156.502 requires school districts to provide health services “in the school setting” through a physician/nurse/delegated school employee. http://www.lrc.ky.gov/KRS/156-00/502.PDF • Section 504 of the Rehabilitation Act or IDEA includes school setting, school transportation and school activities and field trips. • Out-of-state field trips: Discuss with school nurse. School nurse can go to the KDE website and find information on the other jurisdiction’s requirements or contact information to learn the same. http://www.education.ky.gov/KDE/Administrative+Resources/Coordinated+School+Health/Health+Services/Field+Trips+and+Medication+Administration.htm

8. Home district responsibilities • Non-resident agreement with transportation • Temporary disabilities (e.g., injury) • Private school students • Extra-curricular transportation (for public or private school students as required by IEP) • IEP meeting inclusion of transportation staff when transportation is a “related service” or possibly when 504 or health plan. • Transfer student and IDEA or 504 responsibilities

9. Who decides what? District decides alone: IEP/504 decision: What services and aids or personnel a student requires Extent of services (bus stop or door-to door transport) Specific circumstances requiring transportation (including needs that occur outside the regular school day) Provision of medical services on bus • Selection of bus stop • Bus routing and scheduling • Selection of bus driver and aide or monitor personnel • Appropriateness of resources used to provide transportation (type bus, private transport) • Note: not a district choice when affects an element of the student’s education program and results in discrimination or the denial of FAPE

10. At the bus stop • Supervision of the bus stop and transit between home and the bus stop usually not responsibility of the school district. 702 KAR 5:150 http://www.lrc.ky.gov/kar/702/005/150.htm states this interpretation for preschool students and OSERS/OSEP guidance states this for students with IEPs. • May want to utilize parents and volunteers to supervise the bus stop. • Train bus stop volunteers on general supervision and on supervision of special circumstances, if necessary. • School bus driver may not drop off preschool student at bus stop without an adult to receive the student, per 702 KAR 5:150. Driver should then take student to pre-arranged location instead.

11. Students with oxygen • KDE will be issuing guidance on allowing students to ride school buses with medically necessary oxygen. • Medical necessity should be set forth in 504 plan, health plan or IEP. • Transport in accordance with manufacturer’s instructions (usually on the label of the oxygen cylinder). • Inspect cylinder before loading onto bus (no cracks, leaks, pits or dents). • Carry the cylinder with both hands. • Secure the cylinder in an upright position. • Ensure that each canister is kept away from heat or possible sparks since could accelerate a fire. • Practice bus evacuation drills with student with oxygen.

12. Students with service animals • Medical necessity should be set forth in 504 plan, health plan or IEP. • Review any issues for other students (e.g., allergies, fears). • Have all stakeholders involved in planning: parents, animal trainer, assistant/principal, special education representative and transportation safety and training personnel. • Put all details of procedures in 504 plan, health plan or IEP. • Confer with other district transportation directors (like at this conference!) regarding strategies and issues and create a written policy. • Notify other students and parents in writing of animal on bus. • Practice usual riding situation and emergency evacuation (with bus monitor responsible for student with service animal). • Consider the safety of the service animal as well (e.g., use of safety straps).

13. Students with allergies • Most likely a 504 or health plan for these students. • Transportation personnel should be involved in allergy awareness training session and emergency response training session when rider has 504 or health plan for allergies. • May want to keep emergency epinephrine/Epi-pen on board and institute a no-food policy on bus. • Require student to sit near front of bus so driver can monitor food intake and physical, verbal and behavioral symptoms of allergic reactions.

14. Students with hearing or vision impairment • Students may have 504 or health plan or IEP. • Plan or program will describe whether or not an aide is needed or monitor or monitoring required. • Create communication protocol for communication between transportation staff and student. • Practice emergency evacuation.

15. Students with autism • General autism information: - spectrum of disorders (which the DSM-V may change) - 1 in 150 children have the disorder - range from hyper to hypo sensitivity - may react with extreme panic and stress to sensory stimulations or changes in their surroundings or might purposefully seek more intense sensory stimulation - may be passive (even not recognize familiar faces) - vary in verbal and non-verbal communication (yelling to mute) - comforted by routine and may express stress from unfamiliar situation through obsessive-compulsive behaviors

16. Students with autism (continued) • Student may have a 504 plan, health plan or IEP. • Include transportation staff in 504, health or IEP meeting. • Consider noise of bus and on bus when purchasing buses and when planning accommodations for students. • Strategies: - develop a monitoring protocol for bus behavior - train an aide or bus driver to document instances of challenging conduct (useful information for future IEP meetings) - conduct a functional behavior assessment (special ed staff) - develop a behavior improvement plan and train the bus aide or driver to use positive behavior support strategies when a student misbehaves - communicate between special ed and transportation staff

17. Transportation accommodations for students with autism • Display cards with pictures of appropriate bus behavior and positive reinforcements/rewards. • Provide student with preferred items which occupy attention or provide outlet for stress (e.g., game player; squeeze ball). • Allow student to wear music headphones to keep calm. • Provide earplugs to prevent startling from noise of bus and on bus. • Remind students of compliant behaviors through examples in stories or lessons.

18. Students with mobility impairments • Student may have 504 plan, health plan or IEP. • Transportation drivers and aides should be trained in proper loading and securing procedures to avoid injury, death and legal complaints. - Review manufacturer’s recommendations for securing each type of wheelchair you transport. - Transportation equipment /bus should also be appropriate. - Practice loading and securing. - Face chair outward to avoid injury to student’s feet/toes. • Treat students with respect. • Get a firsthand view of the experience from older student /adult with mobility impairment and provide an experience for the staff. • You are a key part of the education process and its success.

19. IDEA funds can be used to transport students without disabilities if: • the vehicle makes the same trip and incurs the same expenses whether nondisabled students are aboard or not; • no additional purchase or larger vehicle purchase with IDEA funds to do this; and/or • the school is attempting to provide the least restrictive environment (LRE) to students with disabilities; and • this is only applicable in very narrow circumstances. Per 1993 OSEP/OSERS Letter to Lutjeharms.

20. Restraint • When is it appropriate? Case by case basis. Cases have found appropriate where restraint of student was necessary to ensure the safety of the student, of the other students or for safe operation of the bus. • Is it in the IEP? If not in the IEP and believe there is a need to restrain student, contact special education representative. • Training on proper restraint and proper use of restraint is imperative to prevent injury, death or lawsuits.

21. Discipline of students with disabilities • KRS 158.150 http://www.lrc.ky.gov/KRS/158-00/150.PDF; 707 KAR 1:340 Section 13 http://www.lrc.ky.gov/kar/707/001/340.htm • 707 KAR 1:340 Section 14: Manifestation determination “Is the conduct the product of the student’s disability?” • Individual Education Program (IEP) and Behavior Intervention Plan (BIP) (supports, techniques and procedures for discipline of student and improving behavior) • When district staff discipline a student in violation of the IEP or BIP, an IDEA or 504 violation may be found. • Ensure transportation staff have a copy of rider’s BIP and follow it.

22. Recommendations • Include relevant transportation staff in IEP, 504 or health plan meeting when transportation services affected – determine if a contemplated service is possible and inform everyone of plan and needs (include plan for delayed school days too). • Partner special ed and transportation departments to find cross-training opportunities (like this presentation!). • Ensure bus driver receives a copy of student’s transportation accommodations. Have a procedure in place to ensure. • Establish notification deadlines in policy/procedure. • Provide alternative transportation if there is a delay in providing accommodations.

23. Recommendations (continued) • Consider least restrictive environment (LRE) when planning transportation accommodations. • Add transportation contact information in student handbook. • Remind enrollment staff of transportation accommodations possibility for new and transfer students. • Give drivers the riders’ emergency contact information cards. • Partner transportation resources with other areas such as physical therapy (can practice climbing bus steps).

24. Bullying • KRS 158.156 requires any school employee, who knows or who has reason to believe a student is harassing, intimidating, terroristic threatening and/or bullying another student, to report this to the principal who reports it to law enforcement or the county attorney. • 2011 Regular Session House Bill 370 would have amended KRS 158.148 to require school district discipline policies to “prohibit harassment, intimidation, bullying, or cyberbullying … Motivated by a student's actual or perceived race; color; religion; national origin; ancestry or ethnicity; sexual orientation; physical, mental, emotional, or learning disability; gender; gender identity and expression; or other distinguishing personal characteristic….” This bill did not pass. • OCR investigates complaints of bullying or harassment sourced from a protected basis (including a student’s disability). • Bullying students generally may face civil or criminal consequences (libel, slander, intentional infliction of emotional distress allegations; assault, battery, terroristic threatening, stalking).

25. Recent Kentucky legislation on school transportation 2011 Regular Session of the Kentucky General Assembly: House Bills 67 and 62 on advertisements on school buses (neither passed)

26. Questions? Contact information: Amy Peabody Assistant General Counsel Kentucky Department of Education 500 Mero Street, 1st Floor CPT Frankfort, KY 40601 Amy.Peabody@education.ky.gov