Transportation can be a tricky part of the IEP process. In California, transportation is not a
guaranteed right, and district policies generally dictate when and where transportation can be
provided. This gets even more complicated for children on IEPs.
In a recent case, the Office of Administrative Hearings (“OAH”) discussed this responsibility. In
this case, the student exhibited maladaptive behaviors that made it difficult to take the bus. The
behaviors were so significant, and the student’s ability to navigate campus was so impeded, that
the parent would accompany the student to school. Outside of an IEP meeting, the school offered curb-to-curb transportation with an aide, and never memorialized it in a IEP.
Unsurprisingly the service was never provided. The parent then filed a due process to get the transportation promised. The district’s argument was two-fold; first, it was not in the IEP (weak argument); second, the district argued since the student was not going to his “home school”, there was a policy that parent would be responsible for transportation (weaker argument).
First, the IDEA regulations define transportation as:
- travel to and from school and between schools;
- transportation in and around school buildings; and
- specialized equipment (such as adapted buses, lifts, and ramps), if required to
provide transportation for a child with a disability. (34 C.F.R. § 300.34(c)(16) (2006).)
OAH found that the Student required transportation services for in-person instruction because
his disability significantly impacted his ability to safely access standard transportation. The parent credibly testified that the student required support and supervision when he traveled between home and school. The parent transported student to middle school because of his disabilities.
When the student attended middle school, he exhibited maladaptive behaviors and experienced
anxiety during transportation. The student’s anxiety would increase during transportation such that he was frequently unable to attend school once he arrived on campus due to his emotional
status.
Long Beach’s claim that it did not offer the student transportation services based on a policy that requires a parent to provide transportation if parent chose a school of attendance other than student’s designated home school was not persuasive. The IDEA requires a local educational agency to provide services that will help student benefit from special education based upon a student’s individual needs. (34 C.F.R. § 300.34 (2006)). Decisions regarding such services are left to the discretion of the IEP team. (Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46576 (August 14, 2006).
Here, the court found that the student needed transportation services to access the special
education curriculum delivered at school. At the hearing, the parent requested for the student to be provided an aide during transportation services because she believed the student needed a support person with him at all times due to his disability. This Decision does not address whether the student was denied a FAPE based on a failure to offer an aide during transportation services because that issue was not specifically pled in the complaint. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i).) Accordingly, the student proved by a preponderance of the evidence that Long Beach denied him a FAPE from April 26, 2021, through the end of the 2020-2021 school year, by failing to offer transportation services. The Court awarded transportation.
What is also noteworthy in this case is OAH’s reluctance to address the totality of the issue.
Parent had also asked for a 1:1 aide to be with the student on the bus, which makes sense and
seemed to be obvious given the facts of the case. However, OAH refused to address this on a
technicality; parent did “specifically” plead that issue. This is hardly a fair view given the
parent was representing themselves. Essentially, OAH will force the parent to file another due
process when the district does not provide the needed 1:1 support to take the bus. Which will
likely happen. So, while this is a win for the parent and they did an amazing job representing
themselves, they are likely to have to fight on.
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