IEP Spotlight: Transportation as a Related Service
Over the summer, we posted about the importance of and tips for successful IEP implementation and progress monitoring. This school year, we will post a series of articles focusing on the components of a great IEP. Today, we want to discuss an often-misunderstood related service: transportation.
The Individuals with Disabilities Education Act (IDEA) requires public schools to provide a free appropriate public education (FAPE) to students with disabilities through the provision of special education and related services designed to meet qualifying students’ unique needs. The IDEA defines related services as “transportation, and such developmental, corrective, and other supportive services … as may be required to assist a child with a disability to benefit from special education.” In practical terms, this means that the ARD committee must determine if a student with a disability requires transportation in order to benefit from special education, and if so, the IEP must include transportation and the district must provide that transportation at no cost to the parent.
When is transportation a necessary related service?
What factors should the ARD committee consider to determine whether a student with a disability would be unable to receive a benefit from special education without transportation? This can be a difficult determination for ARD committees because there are so many practical considerations and, ultimately, if a student cannot get to school, they cannot receive a FAPE. If a student with a disability lacks access or ability to take public transportation and their parent does not own a vehicle, does that student require transportation in order to benefit from special education? What if the student’s parent has a mode of transportation but it is not properly equipped to transport that student? What if the student only lives two blocks from their assigned public school?
The courts have applied two different tests when determining eligibility for transportation as a related service: the unique needs test and the access test. Under the unique needs test, courts have found that a school district must provide transportation as a related service only if the student’s disability directly creates a unique need for specialized transportation. Under the broader access test, courts have found that if a child would not be able to access their special education program without specialized transportation, then specialized transportation must be provided. The Fifth Circuit Court of Appeals, which has jurisdiction over Texas, addressed the question of transportation eligibility in a case back in 1983. In that case, the court looked to the “special circumstances of the handicapped child,” indicating a focus on the student’s disability-related needs.
Similarly, the Office of Special Education Programs (OSEP) provided guidance in a 1996 letter favoring the “unique needs” approach. OSEP advised, that “the determination of the particular related services required to assist a child with a disability to benefit from special education must be based upon the relationship between the child’s disabilities and need for the particular related service.” Further,
“If a child’s disabilities create unique needs that make it especially problematic to get the child to school in the same manner that a nondisabled child would get to school in the same circumstances, then transportation may be an appropriate related service. However, if the disabled student is capable of using the same transportation services as nondisabled students, then it would be consistent with Part B for the student’s IEP team to find that transportation is not required as a related service. The school district is then required to treat the student with a disability the same as it treats its general student population in regard to transportation.”
Ultimately, whether a student requires transportation to access FAPE is a fact-specific determination that must be made by the ARD committee on a case-by-case basis using all relevant data in the decision-making process.
What if your district does not provide transportation to students?
In Texas, school districts are not required to provide transportation to their students.* However, if a special education student requires transportation in order to benefit from special education, that student must be provided transportation regardless of the district’s lack of general transportation services. The same is true for an open-enrollment charter school. On the other hand, if a student does not need transportation to access FAPE, the district is only required to provide transportation to the same extent as would be provided for a student without disabilities – which could be not at all.
Does LRE apply to transportation?
Yes, the IDEA’s requirement that special education students must be educated to the maximum extent possible with their general education peers (the least restive environment mandate) applies to transportation as well. This means that transportation should be provided with general education peers to the greatest extent appropriate. So, if your district does provide general education transportation, that should be the first consideration for a student with a disability. In a district that provides general education transportation services, an ARD committee that determines a special education student requires transportation to access FAPE should start with the premise that the student will use the same transportation provided to their general education peers. Then, if the committee determines that, due to the student’s disability, he/she needs additional accommodations on the bus, it should decide whether those accommodations can be provided in the general education transportation setting. If the committee determines that the student requires specialized transportation, only then should the student receive a different form of transportation than their general education peers.
Beyond eligibility for transportation, numerous other questions can arise: Does the district have to provide transportation to extracurricular activities? What if a student has medical needs? Can a student with a disability be suspended from the bus? To discuss questions relating to transportation and other related services, please contact the authors of this post or any member of the Thompson & Horton Special Education Team.
*This is a larger topic with its own rules and considerations that can be discussed with a Thompson & Horton attorney should you have questions.