Webinar Replay Video #69: Legal Hot Topics In the World of Student Transportation

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Steve Kessler: Good morning. Everyone. Welcome to the Infinit-I Workforce solutions. Fast Forward Webinar Series.

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Steve Kessler: My name is Steve Kessler, and I’ll be the host of the program today.

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Steve Kessler: We do. Wanna thank you all for joining us today. I know for a lot of us, school is either just starting or is about to start here very soon, so there’s a lot of activity, a lot of work that needs to be done. So, we’re very happy that you all are joining us this morning.

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Steve Kessler: and I have to say we have

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Steve Kessler: an important program today. The title is Avoiding the Bumps. Legal Hot Topics in the World of Student Transportation.

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Steve Kessler: and I think, for the most part this deals mostly with students, with disabilities

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Steve Kessler: so, you probably hear some talk about individuals with Disability Education Act, and maybe something about section 5, 0, 4 in the Rehabilitation Act. So

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Steve Kessler: it’s a very exciting program just a few housekeeping items before we get started. Everyone that’s logged in to the webinar is muted so we can’t hear you. So, if you have a question that you would like to pose. You can either type it into the QA. Box there, or into the chat box, and we can see those coming in. So, we’ll

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Steve Kessler: We’ll try to take those questions that you have. Generally, we try to do that sort of thing at the end of the presentation. But we’ll make sure we leave time to get your questions answered, if we if we have some

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Steve Kessler: so why don’t you all, if you don’t mind. Just jump on the chat and type in who you are and where you’re from, so we can kind of know who’s out there.

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Steve Kessler: And while you all are doing that, I want to introduce our guest this morning.

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Steve Kessler: We’re very privileged, I believe, to have what I think is probably one of the top education attorneys in the country.

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Steve Kessler: So, Betsy Helfrich

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Steve Kessler: has pretty much dedicated her professional career to education law.

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Steve Kessler: Betsy has successfully represented school districts.

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Steve Kessler: clients against a variety of claims in State and Federal court, as well as special education, due process, hearings and appeals, including the 8th Circuit Court of appeals.

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Steve Kessler: Betsy is a recognized leader in special education law, providing general counsel, litigation, defense, and consulting for schools in all areas of the individuals with Disability Act and Section 504 of the Rehabilitation Act of 1,973.

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Steve Kessler: Betsy also serves as an independent hearing officer under Section 504 assists schools with drafting and implementation of Section 504 policies and procedures and hosts, numerous workshops regarding 504 for school personnel.

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Steve Kessler: Betsy frequently presents nationally and locally in all areas of education law.

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Steve Kessler: Betsy is a routine presenter at the Council of Administrators of Special Education Annual Conference.

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Steve Kessler: Lrp. Annual National Institute on Legal Issues of Educating Individuals with Disabilities.

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Steve Kessler: The Annual Pacific Northwest Institute on Special Education and the Law.

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Steve Kessler: the Tri-state Regional Special Education Law Conference.

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Steve Kessler: the transporting students with Disabilities Conference and numerous professional development trainings across the country. So, Betsy is a very busy person, and we’re very thankful that you’re joining us this morning. So

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Steve Kessler: without further delay, Betsy, I’m going to turn it over to you.

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Betsey Helfrich: Thanks, Steve. Good morning, everyone. Thank you for that nice introduction. I’m happy to be here with you guys today as we are very busy at school time. My own children are still at home, so I hope you don’t hear them in the background office. I’m ready for them to go back to school.

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Betsey Helfrich: But I am the special Education attorney based in St. Louis, Missouri, where I’m streaming to you today from

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Betsey Helfrich: I represent public schools in IDEA matters, and section 504 matters, and I am lucky to have been introduced to the transportation world and speak

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Betsey Helfrich: at the TSD. Conference in Frisco, and then some state conferences around the country every summer, and I love presenting to you guys, I know we have a lot of you on the line. So

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Betsey Helfrich: if you have questions, but Steve said, please put them in the chat. We’ll try to answer them throughout.

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Betsey Helfrich: because I think what you do is so important and so overlooked. Particularly in the area of special education. So, every time I present to a group of transportation professionals, they say, you know. Thank you for talking about the IDEA to us. And section 504, and legal hot topics, because generally, most of you know, you know about the IDEA, but as transportation directors, you are expected to implement it. Follow IEPs on the bus safety plans.

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Betsey Helfrich: and I really think it’s important to go over some of the basics in those areas and then really focus on what’s new. So, you feel current in that area of the law. So that’s what we’re going to do today is really kind of keep a focus on special Ed. And what if I were in your shoes? I think I would want to know a lot of my families in the in the school world teachers, paraprofessionals, administrators, so I always come at presentations with the thought of if I were them, what would I want to know?

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Betsey Helfrich: So that’s what we’ll do today. So just in general, some numbers, I think it’s interesting to look at.

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Betsey Helfrich: So, in the United States, we educate about 50 million students every year.

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Betsey Helfrich: That’s a lot of kids. And you guys are helping to oversee getting them to school every day, which could not be more important. And we transport about 26 million kids.

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Betsey Helfrich: I take the bus every day.

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Betsey Helfrich: That’s a huge responsibility. So much comes with it. There’s so much on your drivers. It’s almost like your magicians rerouting routes every day. Driver, shortages safety on the bus. What you’re doing is amazing. So, what we’re going to focus on a little bit is of those 50 million children.

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Betsey Helfrich: How many are identified with students as students with disabilities.

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Betsey Helfrich: and the numbers fluctuate. But about 12 to 15% of those students have IDEA eligible meaning. They have been identified to have a disability under the IDEA.

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Betsey Helfrich: So, we’ve got about 7 million students across the country going to public schools that have a disability under the IDEA

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Betsey Helfrich: that also sometimes requires specialized transportation, which we’ll talk about

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Betsey Helfrich: just a little background. I just think it’s nice to kind of keep. Go back to the basics. Some of you are pros. Been around a long time. Some of you were newer. So just a little bit of some basics about the IDEA. I don’t think it hurts. It was 1st passed in 1,975 by Gerald Ford. It was the education for All Handicapped Children Act.

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Betsey Helfrich: and sometimes you still hear it referred to that as the Eha. If you have that in any handbooks or anything, I will change that and update it to the IDEA. I do see that sometimes in handbooks or on people’s websites, it’s still referred to as its predecessor. So, make sure everything’s current IDEA is the current verbiage we use now.

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Betsey Helfrich: the IDEA is a funded law. So, every school across the country that receives Federal financial assistance from the Department of Education, which I assume is all of you on the line. We have to follow the IDEA. There is some money tied to it. Schools get reimbursed for certain things. Obviously, in the transportation world transportation buses come along with it a little bit too.

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Betsey Helfrich: But it is a funded law

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Betsey Helfrich: because it’s funded. We must take proactive steps. We have all kinds of guidelines and regulations. It’s a highly kind of like the transportation world. It’s highly regulated. The IDEA.

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Betsey Helfrich: We used to reauthorize the IDEA about every 10 years and get new regulations so current laws to support the IDEA. But the IDEA hasn’t been reauthorized since 2,004 to 20 years ago.

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Betsey Helfrich: And there’s not a lot of movement on this right now to see any new rules. So

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Betsey Helfrich: when Covid hit.

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Betsey Helfrich: people would say, well, how do we? What does the IDEA say about virtual instruction? And I would say, well, it says nothing, because it was directed in 2,004. We didn’t even have iPads in 2,004.

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Betsey Helfrich: Right? Think of how much school life has changed since 2,004, with school violence and school shoot. A lot has changed since 2,004, so the IDEA is outdated.

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Betsey Helfrich: It, especially with transportation. I’ll show you what it says about transportation, but just know IDEA. Last reauthorized in 2,004

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Betsey Helfrich: we’re dealing with sort of an outdated law, but not nearly as outdated as 5 of which we’ll talk about

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Betsey Helfrich: under the IDEA. If you’ve been around in the school world or part of an IEP team, you hear the word fake all the time.

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Betsey Helfrich: Fake, fake fate. I remember my kids came to see me present once at a transportation conference like, what are you saying?

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Betsey Helfrich: Fake? What? What is that? Well, that’s really the crux of the IDEA. That means a free and appropriate public education. So, meaning, if a student with a disability requires an extra level of support or special bus. We can’t charge that fee anymore for the extra cost. It must be free.

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Betsey Helfrich: Faith means it’s individualized for that student. So, we can’t blanketly say, all students with disabilities must ride this one bus, or all students with disabilities must go to this one school. It must be individualized per, the United States Supreme Court. So, we have faith. It’s individualized. It’s what does that kid needs to make progress based on their unique needs. Faith is really the cornerstone of the IDEA. You’ll hear it a lot if you go to an IEP meeting which will talk about your participation at IEP meetings.

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Betsey Helfrich: Our friend, section 504. You guys probably hear that a lot to 504, 504. They have a 504. Well, section 504 is almost like a chapter or a title. It’s section 504 of the Rehabilitation Act of 1,973. That’s where it comes from.

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Betsey Helfrich: This was passed by Richard Nixon is part of the broader Civil Rights movement.

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Betsey Helfrich: Section 504 applies to every school across the country that receives Federal financial assistance. So, everybody listening must follow 504 even charter schools depending on your situation have to follow. The difference is it’s not funded. There’s no money tied to section 504. So, we think a student need something under Section 504. The district is paying it out of their own dollars or different dollars in the IDEA. So that’s a little bit of a difference.

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Betsey Helfrich: Another difference is section 5, 0. 4 is truly just a non-discrimination law.

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Betsey Helfrich: The IDEA is telling us to reach goals and to do something proactive. Section 504 says schools. You guys figure it out. But whatever you do, don’t discriminate. It’s truly a nondiscrimination law.

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Betsey Helfrich: So, the what’s on the screen here is really the whole language of section 504. This is any program we have as a school, including our transportation programs, we can’t discriminate. We must make sure they’re not discriminatory.

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Betsey Helfrich: This includes any program we have as a school.

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Betsey Helfrich: So that also includes field trips.

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Betsey Helfrich: extracurriculars.

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Betsey Helfrich: the band. The band’s going to go to California to play in the rose bowl and

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Betsey Helfrich: I’ve heard this before, hey? It costs extra to rent a bus that’s wheelchair accessible in California. So, we’re just going to tell that students can’t come, because being in band is an optional program.

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Betsey Helfrich: so, we can tell them they can’t come. But that’s not true.

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Betsey Helfrich: Any program we have has to be nondiscriminatory, even if it’s optional, even if you don’t have to participate in that field trip, even if you don’t have to try out for the football team. If we offer it as a program, it must be non-discriminatory. That’s what 504 tells us.

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Betsey Helfrich: There’s so much more to it. I can do all day 5 or 4 trainings. That’s not what you want to do today, but it’s important to know what 504 is. What’s interesting, too. We looked at the IDEA numbers, and about 12 to 15% of students in your district and across the country are probably IDEA eligible. The current numbers for Section 504 are only about 3% of your student body are 504 eligible. Most likely, if your school’s on track with numbers.

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Betsey Helfrich: So, this keeps creeping up. But really, it’s a lot lower number than the IDEA.

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Betsey Helfrich: Missouri is at 2.7. So, kind of be interesting to see what your State is

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Betsey Helfrich: currently

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Betsey Helfrich: section 504, something brand new. You might have heard about it. The last talk about being dated the IDEA regulations were last reauthorized in 2004 and implemented in 2006. The section 504 regulations were last reauthorized in 1977, and they have been sitting since 1977. I wasn’t born in 1977. They are so outdated they’re very confusing. So, if you feel like man, our school does not have a handle on 504, we’re all over the place.

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Betsey Helfrich: Well, that’s because it is confusing. The regulations are old. They’re not clear. And so I feel like there is a lot of confusion about it. If you feel that way. You’re not alone.

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Betsey Helfrich: In May 2022, the Us. Department of Education announced. They’re going to be coming out with New Section 504 regulations

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Betsey Helfrich: for the 1st time in 45 years

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Betsey Helfrich: we haven’t seen those yet, so stand by so you might hear some buzz about New 504 regulations. But they’re not out yet.

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Betsey Helfrich: Okay, so that that’s a little background of both laws. But I really want to tie it to more practically.

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Betsey Helfrich: what does the IDEA say about transportation? And what? What would I want to know if I were you about the IDEA, and how to really make your department run smoothly.

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Betsey Helfrich: So, the IDEA when you see at the bottom of the screen here. CFR, that’s the Code of Federal Regulations. So that’s what’s been around since 2006.

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Betsey Helfrich: The Ida does consider transportation. It mentions it in the actual language.

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Betsey Helfrich: and it’s considered a related service. So, you might hear that in IEP meetings, or the special Ed director might say, yep, they have transportation as a related service in their IEP.

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Betsey Helfrich: That just means the IEP team for the child decided. This student needs transportation in order basically to get to school safely

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Betsey Helfrich: because of their disability. They’re required to have transportation, because

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Betsey Helfrich: otherwise, they couldn’t get to school in a safe manner, and that is an IEP team decision.

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Betsey Helfrich: If they need transportation as a related service, just because transportation is in an IEP doesn’t mean it has to be on a certain kind of bus or it. It really doesn’t mean anything unless they put it in the IP,

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Betsey Helfrich: so, some schools just check the box. And yes, transportation is needed as a related service.

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Betsey Helfrich: But you can also ride it, and I’m sure some of your schools do this, too, hey? It needs to be an air-conditioned bus. They need a ramp; they need an aid.

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Betsey Helfrich: An aid is also something that you can ride into an IEP that they need an aid on the bus.

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Betsey Helfrich: There’s no set requirement, hey? If they have this disability, they must have an A, or if they have this, they need it’s always an individualized decision, and I would encourage you to not be afraid to speak up as the driver of the transportation department leaves. If you think a student needs an aid on the bus, because that is certainly something a team can do.

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Betsey Helfrich: it’s not always the answer. Did you know? We have some sad cases where the aid really didn’t help at all, but sometimes it helps a ton helps that driver. So, you can put that in an IEP. You can also put it in a 504. So, 504 S can also dictate transportation.

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Betsey Helfrich: and they also can dictate important things like allergies.

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Betsey Helfrich: You might see a 504. Student has a peanut allergy.

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Betsey Helfrich: That would be a situation. You would see a 504, and maybe not an IEP.

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Betsey Helfrich: and that bus driver needs to be aware of an allergy in a 504, and we’re going to talk a little bit about that later of what can be shared and what drivers can know, because you hear a lot of things. Oh, that’s HIPAA protected and that’s not true. And we’re going to kind of break down those myths. But just know IEP and 504, they can both address transportation.

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Betsey Helfrich: How do you know if it’s required?

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Betsey Helfrich: How do you know if a child needs transportation in their IEP.

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Betsey Helfrich: Well, it really is in this quote from OSERS, which is part of the department of Ed, says, you know, it’s the IEP team that must decide is transportation needed.

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Betsey Helfrich: and if it is, it should be described in the IEP of what is needed, so the IEP should be clear. So, if a stranger picked up the IEP, they would know exactly what to do.

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Betsey Helfrich: If a student moved in from a different district and required some sort of special transportation, you would hope that it was clear in that IEP which.

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Betsey Helfrich: So, this is kind of an interesting case. I like to study the cases in this area. So, if a parent disagrees with an IEP team or a school saying, you know

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Betsey Helfrich: you didn’t provide transportation as a related service, my child’s IP and I thought they needed it where I thought my child needed an aid on bus, and the school says, no, a parent has a right to file a due process. That’s what it’s called.

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Betsey Helfrich: It’s under the IDEA. It’s basically a lawsuit under the IDEA that the parent can file. And it’s free to file.

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Betsey Helfrich: And you don’t have to be represented by an attorney. So, a lot of parents represent themselves. Some states there. They have a ton of attorneys. New York has a zillion due processes, Missouri. We don’t really have that many. Be interesting for you to see what your State is like, but a parent can file a due process which is essentially a lawsuit, saying, I disagree with the decision you made, and I want a different outcome and a hearing officer slash kind of judge. It’s not usually a formal judge.

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Betsey Helfrich: They get to decide and say, Yep, you must put this in the IEP or no, you don’t have to.

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Betsey Helfrich: So, we like to study those cases because it’s kind of interesting

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Betsey Helfrich: to see how they come out. Just so, you know, in the future. But what? Why, I like this case, I thought it was interesting was this was a 6-year-old student with autism

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Betsey Helfrich: and a language impairment, and the student moved to a new district, and that’s where you see a lot of turmoil, so to speak, is one district. Had all these things in the IP that they provided for the student. And then the student moves to a new district, and the new district isn’t willing to do the same things. And that’s what happened here.

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Betsey Helfrich: And the students former district said, we will provide curb to curb transportation for this child.

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Betsey Helfrich: So, the student moves to the new district. And Mom says, Okay, we’d like curb to curb transportation, please.

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Betsey Helfrich: And the school said, you know, we don’t really think based on what we’re seeing here. We don’t think they need transportation curb to curve.

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Betsey Helfrich: So, they did a transportation assessment, and they studied the student a few days getting on and off the bus, and they determined the real issue wasn’t what on the bus

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Betsey Helfrich: the real issue was. Once they got in the building, they tended to kind of get lost. And so, the school did their own transportation assessment before agreeing to something in the IEP to see what was truly needed, and they won.

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Betsey Helfrich: So, they offered the student a 1 to one aid. Once they got to school to help them get into the building, into their classroom safely, the school won this because the IDEA gives discretion to the IEP team to determine what’s necessary. You don’t absolutely have to adopt a new IEP exactly what the other school sent you.

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Betsey Helfrich: So, on that note, I want to talk a little bit about that.

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Betsey Helfrich: The IDEA doesn’t define what curve to curve means

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Betsey Helfrich: they don’t define what door to door means.

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Betsey Helfrich: Your State law may. So, it’s something I want to know as a leader of the Transportation Department. Does our state law. Do we have any sort of manual that says, here’s what door to door is. Here’s what curb to curb is.

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Betsey Helfrich: if you don’t, here’s what it means. It means what the parent thinks it means.

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Betsey Helfrich: So, if you notice a student’s IP says door to door. But you know that the driver is just coming up to the edge of the driveway.

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Betsey Helfrich: That’s something we need to rectify

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Betsey Helfrich: cause an IEP is like a contract.

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Betsey Helfrich: So, if the if the IEP says, door to door, and Mom thinks that means we are coming to the front door, opening the door, receiving the child, putting them on the bus and then taking them to the school and delivering them to the front door of the school. Then that’s what it means.

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Betsey Helfrich: So, some schools I heard when I do train. They say, Betsy, we always just put door to door. That’s just a standard part of our IEP, and I would encourage you to. If that’s your practice to change it.

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Betsey Helfrich: Befriend the special Ed director. You guys should meet frequently, frankly.

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Betsey Helfrich: and talk and say, hey, here’s what I’ve noticed is the transportation director. We keep seeing door to door. This child does not need door to door, our drivers having to get off the bus. It’s delaying the whole the whole route, and this child walks out fine.

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Betsey Helfrich: We can change what an IP says. But through the T process we have to reconvene, or maybe next year when you’re drafting the IEP. You don’t put that in, but the driver themselves can’t amend. An IP said, hey, that’s not working. We don’t go door once it’s in there, it’s contract. So, we do have to speak up early, or even come to the meeting. Some schools say, oh, no, no, we can never have our drivers or transportation department come to the meeting. Well, you probably don’t have time to go to every meeting.

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Betsey Helfrich: But the truth is, there’s nothing in the law that says you can’t go

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Betsey Helfrich: so particularly in a dicey situation, you should speak up and say, hey, I want to come to the IEP meeting before it’s put in the IP that we’re going to be going down this muddy embankment. Let’s talk about it.

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Betsey Helfrich: because once it’s in there it’s too late to take out. So, I have this scenario here.

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Betsey Helfrich: Bobby Brady is the head of the school’s transportation department. He gets a call from one of his drivers who drives a special need route.

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Betsey Helfrich: The driver’s bus got stuck in the mud that morning while trying to exit a rather steep driveway.

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Betsey Helfrich: After listening to the distress of the driver about the sticky situation. Bobby states today is your lucky day. I know that parents well, and they will be okay. Meeting you at the top of the driveway. From now on

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Betsey Helfrich: I’ll call them and tell them about the change.

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Betsey Helfrich: This is very common

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Betsey Helfrich: right

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Betsey Helfrich: There are many cases about this, where, hey, something changes, there’s water on the road. There’s mud. If it’s just one day we make a change because of weather, not a big deal

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Betsey Helfrich: it. This is very common where the parent says, Yeah, that’s fine. You know what? We’ll just come to the top of the driveway from now on.

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Betsey Helfrich: And that’s okay until it’s not

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Betsey Helfrich: okay, because the burden is always on the school to follow the IEP. So again, a day or 2 it’s muddy. That’s fine. We do what it takes to be safe.

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Betsey Helfrich: But if for the rest of the year we’re planning on, you know, the IEP says door to door.

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Betsey Helfrich: But we’re just going to go to the top of the driveway from now on. That’s not something we can change by ourselves. The IEP must change, and that’s exactly this case from New York in 2,018. So, students had multiple disabilities.

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Betsey Helfrich: The IEP itself said door-to-door transportation.

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Betsey Helfrich: And previously a bus would go down the driveway, and there was a little turnaround pad in the driveway, and the bus would turn around, get the students go back up well in in the winter. It started to get muddy on the driveway, and the driver correctly said, this, this isn’t safe anymore. I can’t do this, which is fine, because again, safety is under more concern. But they just called the parents. And hey, from now on, for the rest of the year we’re just going to come to the top of the driveway.

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Betsey Helfrich: and at 1st Mom said, Sure, that’s fine. I’ll wheel the kid up there. That’s fine.

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Betsey Helfrich: Well, it didn’t become fine. My mom got a cold, and it’s February or March.

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Betsey Helfrich: and she’s wheeling the child up this long, steep driveway. She gets mad and says my eye piece is door to door. It’s not muddy anymore. You need to come back down and get the kid at the door like we agreed, and the district said, no, from now on we’re going to stay at the top of the driveway. And so, the parent filed a due process, a lawsuit, and

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Betsey Helfrich: the parent one.

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Betsey Helfrich: because the IEP said door to door.

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Betsey Helfrich: It wasn’t defined in New York what door to door meant.

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Betsey Helfrich: So, the Court looked at what did the parent think it meant. The parent thought it meant they did, for the whole 1st half of the year came down to the concrete pad, come to the door and get the child, and by changing it, even with Mom’s consent they violated the IDEA because they changed the IEP without going through the right process.

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Betsey Helfrich: So, what could they have done here? They should have reconvened the IEP team.

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Betsey Helfrich: and as a team decided to take door to door out.

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Betsey Helfrich: because once it’s in there we must follow it. It cannot be up to the driver. It can’t just be with. Oh, yeah, the parents. That’s fine.

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Betsey Helfrich: Train your drivers. If they’re going to make a change from what the IEP says, they really need to talk to you, and you need to talk to the spending director, and go about it the right way. Now again, a day or 2. It’s icy and it’s snowy. Just survive and be safe. But if you’re making a change for the rest of the year.

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Betsey Helfrich: That’s something you must properly address.

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Betsey Helfrich: This is a very, very common situation.

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Betsey Helfrich: Okay, how about gated communities? Lots of cases on this. I think this is interesting. I’m from Missouri. We don’t have a lot of gated communities, but this case is from California.

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Betsey Helfrich: and I think there’s a lot of gated communities in California

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Betsey Helfrich: again, a 2018 case. This is a rather large student. He was 16 and physically large, over 6 foot

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Betsey Helfrich: male student with autism, educational autism.

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Betsey Helfrich: He was nonverbal. He had seizures. He didn’t often have control of his body movements when he was agitated.

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Betsey Helfrich: so, he and his IEP had many accommodations, but one of those was an IEP that specified curb to curb transportation. Again, it matters how we’re riding in the Iep

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Betsey Helfrich: curb to curb and door to door. Are not the same thing. Are we saying the nearest, safest bus stop?

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Betsey Helfrich: If we say nearest, safest location, we better be sure what that means, and we better have notes saying what that means. Okay? Because I see vague things like that all the time. And it really can lead to trouble.

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Betsey Helfrich: So, you must be specific. And again, you’re not at all those meetings, but maybe a conversation with the SPED director saying, hey? I’ve noticed these are. However, they’re being written. We need to clarify. Okay.

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Betsey Helfrich: Large student

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Betsey Helfrich: parents live in a gated community

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Betsey Helfrich: and the previous school year, what happened was the bus driver. On the 1st day Dad met the bus driver outside the gates of their community with key fob, and said, Here’s the key fob for the year to get you through the gate. And so then from then on, the bus driver just sailed through the gates with key fob, picked the student up right outside of his driveway and took him to school.

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Betsey Helfrich: Well, it’s a new school year when this case hits.

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Betsey Helfrich: There’s a new driver, and so on the 1st day Dad says, hey, I’ll meet you. Come on through.

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Betsey Helfrich: And the new driver says, no, our company’s policy is we cannot drive in gated material gated communities.

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Betsey Helfrich: Okay? So, my company was a new company that the district contracted with. And they said, our company, our insurance won’t let us come through gated communities.

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Betsey Helfrich: and Dad said, hey, I don’t. I don’t care about your insurance company. You need to come. Get my kid

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Betsey Helfrich: and the bus driver said, No, I’m not, and so, of course Dad’s angry. He calls the superintendent, and the superintendent says the same thing. Hey, we have a new bus company. We can’t make them go through the gates, and Dad says, well, my child’s Iep says you’re going to come curb to curb, and that means the curb outside by driveway. So, you do need to come through the gates

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Betsey Helfrich: the superintendent digs in parent files the due process, saying, you violated the IP.

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Betsey Helfrich: And the court agrees with that, and says an Iep, like a contract cannot be changed unilaterally.

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Betsey Helfrich: and policies promulgated by the transportation department do not override the district’s obligation to implement the Iep.

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Betsey Helfrich: So, there is nothing in your insurance or your privately contracted bus company’s contract that can override the IDEA. The IDEA always trumps.

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Betsey Helfrich: So, if we are contracting with an outside company that says, hey, we can’t go and gated communities, or hey, we don’t do this.

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Betsey Helfrich: Be mindful of that.

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Betsey Helfrich: And before you sign that contract, say we do need you to go into a gated community. Can you, do it? Because, if not, we might contact somebody else.

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Betsey Helfrich: or just know if they if we can’t contract with somebody else, we, as a district, must find a vehicle that can go in that gated community.

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Betsey Helfrich: So, the district lost this because we made a unilateral change to the Iep, and it didn’t fly. So, if we say curve to curve, we do have to figure out how to get in there, even if it’s a gated community. So, before you write it in, we need to know the situation. Is it safe?

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Betsey Helfrich: And we need to write it accordingly.

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Betsey Helfrich: Steve, any questions about that before I go on.

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Steve Kessler: I’m sorry I had to unmute myself. One question that that and this is really good information. But I have a question about

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Steve Kessler: in in cases where, you know, they

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Steve Kessler: gone through due process and the parents won the case? Are, are there ever

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Steve Kessler: damages awarded? Are there any fines or penalties.

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Betsey Helfrich: Food.

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Steve Kessler: Associated with this.

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Betsey Helfrich: A great question, Steve. So, under the IDEA.

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Betsey Helfrich: you don’t see an award of monetary damages. The IDEA is like personal remedy, so the court can say, Parent, you were right, so we do have to go pick you up. They might give some compensatory education and say you missed school for a week because you couldn’t get to school. So, we are going to offer you tutoring or make up services. The only money that comes in under the IDEA is if the parent was represented by an attorney.

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Betsey Helfrich: the school district might have to pay the attorney’s fees for the parent, which sometimes can be up to $400,000. So, it is a risk to this to the school

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Betsey Helfrich: now.

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Betsey Helfrich: So, no money damages under IDEA. 504, though, if it’s a discrimination lawsuit.

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Betsey Helfrich: So, you didn’t let me go on the field trip because you said it cost more for me to rent the bus because of my disability, and that’s discrimination, or, hey, you didn’t let the students with disabilities go on the field trip

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Betsey Helfrich: under 504. You can sue for monetary damages, for discrimination, and you are seeing that more and more. So that’s where the money lies are discrimination.

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Betsey Helfrich: So that’s something just to be aware of for everybody listening.

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Betsey Helfrich: If you have some practices at your school that you’re thinking of you know what I don’t know if we do that right, or we tell students with disabilities. They can’t be in a certain club because we can’t take them to the other school after school hours.

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Betsey Helfrich: Those are things we need to really focus on, because that’s where the money damages come in.

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Betsey Helfrich: So that’s a great question. So, a little bit different IDEA. No money damages, 504 money damages.

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Steve Kessler: Can be so here.

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Betsey Helfrich: It is lengthy. No one wants to go through due process.

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Betsey Helfrich: Your teachers are on the stand; your bus drivers are on the stand. It’s very intimidating. A lot of parents are now live broadcasting these due processes around the country and through other parent advocacy groups. So, everyone, a lot of people are watching you live while you’re testifying. No one likes that. So, they’re very intimidating. So, it’s just not a position you want to be in.

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Betsey Helfrich: I will say this on as a side note to

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Betsey Helfrich: the transportation directors, listening. It’s back to school time. Obviously, you’re planning back to school training for your drivers for good training

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Betsey Helfrich: keep records of every single driver who listens to those trainings because I have been through litigation where the parent will say they weren’t even trained. And you say, yes, we were every year back to school every year on August 30.th We watch the confidentiality video, whatever it is.

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Betsey Helfrich: and the plaintiff’s attorney will ask for the sign in sheet, and I see a lot of schools that say, oh, we didn’t have everybody sign in. We just had the entire bus bar and watched the video together.

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Betsey Helfrich: Always keep a sign in sheet from every single driver who watches your back-to-school trainings

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Betsey Helfrich: and keep the materials, because it can go a long way to protect the driver if they could say, because right now we’re talking about IDEA compliance. But obviously there’s a lot of safety bullying.

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Betsey Helfrich: Tragic accidents keep

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Betsey Helfrich: every single person’s login. If they’re watching, or a sign in sheet

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Betsey Helfrich: to just a side note.

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Betsey Helfrich: Okay, we’re going to go.

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Steve Kessler: For a subpoena to be issued for that sort of information.

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Betsey Helfrich: Absolutely

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Betsey Helfrich: so, a few things.

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Betsey Helfrich: FERPA, parents can request their own kids records. Right? So, any emails internally between the transportation department be mindful what you’re putting in email. And then subpoenas, if you’re in litigation, can really get anything, and they will 100% ask either through a subpoena or the discovery process for training materials, and who signed it.

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Steve Kessler: Fantastic.

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Betsey Helfrich: We could talk about Iep implementation literally all day. I have a zillion interesting cases, but you get it. We don’t have that much time. The point of this section is just really, mindful of how you’re writing IEPs and

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Betsey Helfrich: that we aren’t making any unilateral changes.

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Betsey Helfrich: And if needed. You show up to that IEP meeting and say, hey, guys, let’s talk about this.

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Betsey Helfrich: Just keep in mind, too. I think the driver shortage is hopefully, maybe getting a little bit better. I’d be interested to hear, to hear your thoughts. You might disagree, but one thing I keep seeing litigation on, for when times are difficult, just after Covid

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Betsey Helfrich: is, we’re again pulling off magic tricks, getting kids to school and rerouting things. Be mindful that we aren’t shortening the school day for students with disabilities.

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Betsey Helfrich: So, students with disabilities per the IP have a certain number of minutes they’re required to get. So, if we are loading up the special needs classroom first because it takes longer, right? So, there is some practical aspect to that. But if they’re missing a chunk of their day because of transportation needs. That would be something liability would come from. And there are many, many cases on that, and the courts are really cracking down on this. So just be mindful that we’re not shortening students with disabilities day because of transportation needs

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Betsey Helfrich: important. You’re seeing a lot of discrimination lawsuits on that.

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Betsey Helfrich: Don’t forget there is an option under the IDEA. If we cannot find a driver, or for some reason they do live down a muddy bank, we just cannot safely get them there. We can always offer parents to transport students under the IDEA. We can’t make them, but if they volunteer and say, hey, I don’t mind or if it’s part of a discussion, we can pay them

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Betsey Helfrich: the IRS

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Betsey Helfrich: reimbursement for mileage rate. I would not pay them an hourly rate, because then they’re an employee transporting a student. They probably don’t have the proper certifications for drivers and the certifications that you require from your state. So be mindful of that.

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Betsey Helfrich: Again. This is something you go through with the special Ed director, but it is an option to reimburse parents under the IDEA of driving their kids to school. If we cannot figure out a way to safely transport them, particularly when we have students that are placed outside public agencies, where they’re going to a private school for behaviors or autism, or something like that. So I always like to put that in. It’s an option to consider, and sometimes really helps some difficult situations

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Betsey Helfrich: I want to talk

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Betsey Helfrich: about. I’m going forward a little bit. I do want to talk about FERPA, and what you can share, because I think that’s important and sometimes overlooked. And this is true for general education students and IDEA students.

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Betsey Helfrich: Student confidentiality is governed by FERPA. That sounds like a rodent right? It’s the family educational rights and privacy act.

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Betsey Helfrich: So, here’s a little scenario

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Betsey Helfrich: mom sent school a note that says, since Greg has been very ill, he can only eat certain foods, even though students are allowed to eat snacks on the bus and are known to trade snacks. The school’s front office doesn’t want to share this note with the transportation department because they don’t want to violate HIPAA.

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Betsey Helfrich: Is that true?

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Betsey Helfrich: The answer is, no.

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Betsey Helfrich: So, when we’re in the school environment, HIPAA doesn’t really apply, it’s FERPA. The family educational rights and Privacy act and

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Betsey Helfrich: FERPA governs any record we maintain about a student, even if it’s a medical record. So even if we got a note from Mom about health, or we get a note from a doctor once we take possession of it as a school, it’s governed by FERPA. So, this is A lot of training. Just communicate with your nurses, because sometimes nurses are the ones that are very hesitant because they have been trained, HIPAA. But the truth is, under FERPA, we can and need to share with those who have a legitimate educational interest in. In the info.

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Betsey Helfrich: This includes

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Betsey Helfrich: people we contract with. So sometimes there’s a myth about that. Well, we use an outside company to do our transportation. We contract with X Bus company so we can’t share anything. The truth is purposes. Yes, you can. If we are contracting with somebody to perform a school function, we can share information.

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Betsey Helfrich: So, we must think there’s no FERPA place. You’re not going to go to jail because you violent FERPA. But man, could there be serious consequences if we don’t share information about an allergy with the driver who needs to know it absolutely.

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Steve Kessler: Yeah.

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Betsey Helfrich: Or a student who has a heart condition. So, you don’t want to send every IEP and every 504 to every driver. That’s overkill. It would have no purpose.

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Betsey Helfrich: But there does need to be some really good communication between your nurses, your special Ed department, and you as the Transportation department.

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Betsey Helfrich: How are we sharing information about allergies and heart conditions and EpiPens? And how are we sharing that with sub drivers?

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Betsey Helfrich: Because this is where you see a lot of litigation is hey? Somebody’s driving a different route. We’re rearranging things all day. But, man, there’s a student with some high needs on this bus. How are we sharing that information? Because, unfortunately, you see, a lot of sad cases where a student might pass away in the classroom because it’s a sub in there, and they’re not sure of the emergency procedures. So

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Betsey Helfrich: back to school time, really, think, how are we sharing information with drivers? What do they need to know again? I don’t think sending every Ips has any effect at all. Maybe a cheat sheet of here’s what you need to know on this route.

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Betsey Helfrich: If there’s a training for that student who has a special seizure condition, maybe we invite the bus driver. I really think that’s an important step that we could take. We could probably correct this back-to-school time, of how we share info.

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Betsey Helfrich: The Department of Ed, even clarified that bus drivers are entitled to information under FERPA. They have a whole thing about it, you guys get it. But there is no world where we can’t share information about bus drivers.

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Betsey Helfrich: Really, anyone in the school environment, even a volunteer. I’m a parent volunteer for a field trip if we say, hey, you need to know this about the student you’re helping chaperone today. Please don’t redisclose this information, but that’s okay.

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Betsey Helfrich: So also, the IDEA contemplates that we can provide any information to a service provider and the bus driver could come to the IP meeting again. Not that they want to do that. They have a lot going on. We need them on the bus, but it technically.

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Betsey Helfrich: there is nothing wrong with the driver coming to an IP meeting

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Betsey Helfrich: and getting the information they need, if that’s something you thought was appropriate or necessary, or you yourself could go.

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Betsey Helfrich: And you are sharing information. That driver seemed to be relevant to the IEP team. So, saying it early and often before the IEP gets drafted is important and really trains your drivers to do that again. Just keep in mind

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Betsey Helfrich: anything we put in writing in the school environment can and shall be read in a court of law. Someday. So, if you see drivers

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Betsey Helfrich: sharing information sometimes you have. I’ve done a training once. We’re the driver’s transportation department. We’re all on like a group meet chat.

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Betsey Helfrich: And they were surprised to learn that when they were talking about kids in that group, me, or things that happen on the route that that was subject to subpoena, and it turned out to be very embarrassing. For all the drivers. But everyone is so professional doing their best. They just said a few things that maybe they would be surprised if somebody read later. So just kind of remind your drivers remind everybody that because it is, it can be embarrassing. You know that you put something in writing that maybe you would be embarrassed to have somebody read? Someday

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Betsey Helfrich: there are special rules. I wanted to take your questions, too, but I just want to talk a little bit.

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Betsey Helfrich: about student discipline.

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Betsey Helfrich: So, we could have a whole separate thing on student discipline. But if you are eligible under the IDEA.

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Betsey Helfrich: or section 504. As a student.

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Betsey Helfrich: you are entitled to extra protection when it comes to discipline.

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Betsey Helfrich: So, what that means is the law has contemplated. If a student with a disability gets in trouble under the IDEA and gets suspended from school.

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Betsey Helfrich: if it’s more than 10 days in a school year.

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Betsey Helfrich: They must have what’s called a manifestation determination meeting. So, you might have heard of that Mdr. Manifestation, and what the point of that meeting is. It’s a team of professionals to get together and speak.

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Betsey Helfrich: did the student engage in this conduct because of their disability?

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Betsey Helfrich: So, they have an emotional disturbance, and they call out, they say, shocking statements as part of their disability, and when they are on the bus

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Betsey Helfrich: they made a threat, or they made a shocking statement because they can’t control it.

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Betsey Helfrich: The team must get together and review that. And the law says this is the IDEA. I didn’t write it, but it says, Hey, if the student

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Betsey Helfrich: did this conduct because of their disability, we cannot suspend it.

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Betsey Helfrich: So, I think that’s important to say, because I think sometimes drivers like, Wait a minute. I just kicked this kid off my bus yesterday, and the superintendent just told me he has to come back on my bus.

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Betsey Helfrich: That might be because of the required manifestation and determination meeting under the IDEA, and 504 requires it as well.

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Betsey Helfrich: If it’s related, they cannot be suspended even from the bus.

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Betsey Helfrich: and that’s hard sometimes.

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Betsey Helfrich: Because, hey, they just hurt somebody. What do you mean? They have to come back on my bus, or they brought. Now there’s exceptions for drugs. There are some exceptions.

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Betsey Helfrich: But where you see this a lot of times is ADHD and impulsivity. Well, they did something in the classroom. And we’re going to suspend them and the parents as well. They’re impulsive. They can’t control it. And so, you have to have this big meeting called the Manifestation Determination Meeting.

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Betsey Helfrich: If it’s related to their disability under the law they cannot be suspended, and that includes from the bus.

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Betsey Helfrich: If it’s not related, they can be suspended.

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Betsey Helfrich: So, bus suspensions count towards those 10 days. If, as part of their IEP. They have transportation as a related service, so IEP really dictates a lot. So, if their IEP says yes, they need transportation as part of their IEP.

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Betsey Helfrich: and then they get kicked off the bus for more than 10 days that manifestation meeting would be required.

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Betsey Helfrich: So again, what happens on the bus? That communication, the driver knowing their disability, and perhaps knowing how to deescalate for the child. If there’s a behavior plan for the child, the driver knowing that if there’s a training about that child, that driver could be so important

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Betsey Helfrich: because your driver needs to understand that. Why is this could keep coming back? I just keep them off. It’s because the law might require it. That area of the law is interesting. I’d be interested to see if it’s going to change but that’s how it stands right now is more than 10 days in a school year. A student gets disciplined. You must do a manifestation meeting.

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Betsey Helfrich: If what they did is related to their disability, they cannot be suspended.

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Betsey Helfrich: And again, you see a lot of litigation over that. We could talk about that all day, but I just kind of wanted to throw that in, because I think that’s something that maybe is it talked about with drivers is that part of the law, and why you might see some interesting things. So again, train drivers. If there’s a behavior plan, if there’s something that driver needs to know about de-escalating the student to keep them safe.

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Betsey Helfrich: they need to know.

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Betsey Helfrich: So, in general, again, there’s so much to know about the 504. But

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Betsey Helfrich: the basics are just. Be mindful of discrimination. Are we treating students differently because of field trips or transportation? Could we do better on that.

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Betsey Helfrich: If an IEP says door to door or curve to curve, we cannot change it ourselves. As a transportation department. It must go through the IEP team. But speak up right. Ask me to come to that meeting. Participate. If you think the IEP as drafted is putting your driver in a difficult or dangerous situation. It’s good to speak up.

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Betsey Helfrich: Let’s amend this. Let’s get this right and or speak up before the meeting, so we don’t put that in again. Be more specific. Tell your special Ed directors, please stop riding to the nearest, safest location. Because what does that mean? Right?

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Betsey Helfrich: Really speak up and communicate, and it can go a long way to avoid these types of lawsuits. Don’t forget back to school time sharing information, reminding drivers what we put riding matters. And let’s open the lines of communication. Your drivers are safe and know what they need to know.

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Betsey Helfrich: But I’ll stop now just to see if there’s any questions or any discussion we want to have. I kind of flew. There’s so much we could talk about in this area. Try to kind of pick the highlights of what you might need to know? Back to school time.

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Steve Kessler: Yeah, thank you. Betsy. It amazes me every time I hear about these topics, how much you must know to transport students with disabilities. It’s crazy. And we do have some questions here.

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Betsey Helfrich: Right.

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Steve Kessler: I’m going to kind of take them in the order that they came in.

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Steve Kessler: Here’s question from Dan Dan’s asking, can IEP be amended with the school district and parent agreement.

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Steve Kessler: Is it? Is it that simple? Yeah.

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Betsey Helfrich: Yes, it can be amended with the district and parent agreement. So again, if the parent just says it’s fine, that’s not an amendment. There’s formal paperwork that goes along with it that your special Ed director would know. But yes, you don’t always have to reconvene the whole team if the parent agrees, and then there would be special forms and paper. If the parent doesn’t agree, I don’t know. Then you would need to convene the whole team and talk about it and go through the proper channel.

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Steve Kessler: Very good. Here’s another question.

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Steve Kessler: must special services and curb to curb, be provided for. Late transport after school stayed for an activity after school.

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Betsey Helfrich: Possibly. Yes, it depends on what the team decides. Now, if you don’t offer transportation to any other student for after school activities, you know right then, then maybe you don’t have to for the student. That would be an It team decision, though, of Hey

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Betsey Helfrich: be, we want this child to be able to participate in extracurricular, and if we don’t provide transportation home they can’t. It might be something you want to do. But it doesn’t always have to. Again. It’s individualized.

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Steve Kessler: Okay, I think kind of a follow up question. Here is, must special transport be provided to daycare after school for Esc and 5 0 4 students.

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Betsey Helfrich: Again, not must. It would go back to do you provide transportation

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Betsey Helfrich: to other students, to daycare or to home. A lot of schools do, especially for Esc, like early childhood, because they’re coming for a half day. So, I would say, most schools do. There’s nothing in 5 0 4 that says you must do this, they would just say, don’t discriminate. If you do it for other kids, you need to do it for our disabled kids. So again, that’s a broken record. But there’s nothing in the law that says you must do this. You must do this. It’s individualized and nondiscriminatory.

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Steve Kessler: Very good

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Steve Kessler: one other question here must bus staff administer medication on the bus, let’s say, for seizures.

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Betsey Helfrich: Oh, such a good question! We had a whole. We can talk about that as well. There’s no rule that says bus drivers can’t administer this or this. Nurses can delegate administration of medicine if somebody is trained, and every State law might be a little different. Then a driver and aid could administer medication. So, it’s again what the team decides.

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Betsey Helfrich: Some districts say our drivers will not be trained on administration of emergency medication. I will tell you those cases. The schools lose.

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Betsey Helfrich: Okay. If they have a blanket rule, we will never train our drivers. We will not blanket rule.

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Betsey Helfrich: Don’t succeed.

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Betsey Helfrich: If you have a poly, don’t it? Just a practice of saying, you know, we determine case by case what that kid needs in general kid needs. In general, we don’t have our driver do it. We would like to have an aid on the bus if it’s going to be needed, because the driver is there for safety?

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Betsey Helfrich: But I would not have blank policies and say, our drivers will never do action y. Because again.

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Betsey Helfrich: if it’s not individualized, the court won’t like it. So, in general, it’s okay to say, hey, we have an aid that provides them in emergency medicine. But there are cases where they say, no, that drivers better be trained too.

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Betsey Helfrich: It’s interesting because I get it. That driver is trying to drive. We don’t want to worry about administering rectal seizure medication. It’s big, it’s a scary, scary thing. But again, I would just never say, never. I wouldn’t have blank policies that say, our drivers will not do. X. Don’t put that in writing, you say, hey, we do what it takes for a kid. We’re going to come up with individual situations.

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Betsey Helfrich: that’s all. It takes.

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Steve Kessler: Very good. I don’t see any other questions popping in right now. But one thing I I do want to say

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Steve Kessler: You talked to several times about the need to properly train the bot drivers about a lot of this material that we talked about, and it’s very important also to document that training and frankly,  Infinit-I Workforce Solutions. That’s kind of what we hang our hat on. You can deliver the training through the system. Everybody is tested on the content, and there is a date and timestamp recorded

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Steve Kessler: document of that training, and a certificate of completion, is produced

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Steve Kessler: for each one. So

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Steve Kessler: I know we have a lot of our customers out there. Certainly. They are fully aware of what we can do, but if there are any school districts out there would like to know a little bit more about us. I pop this little poll up on the screen.

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Steve Kessler: And also, and this is kind of my commercial part here. A lot of school districts need school bus drivers.

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Steve Kessler: and I want to remind everyone that we are a registered provider for entry level driver training

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Steve Kessler: for the theory portion. So, if you have drivers that need a class B CDL, or perhaps you have drivers that need the school bus endorsement. For example, we have that material as part of our system, and it’s a good efficient way to provide that for the needs you may have for your school bus drivers.

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Steve Kessler: So, I just wanted to pop that out there. And I don’t see any other questions coming in. But I will say, Betsy, I really enjoyed this presentation. We’ve had a lot of requests for the recording of this, because.

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Betsey Helfrich: Great.

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Steve Kessler: Folks couldn’t make it so

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Steve Kessler: I will. Thank you once again for this this great bit of information and sounds to me like. There’s 2 or 3 other topics that we need to have webinars

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Steve Kessler: that we could bring you on and talk about. So, I don’t see any other questions. So, Betsy, I’ll just thank you for your time this morning. Thank you all very much.

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Steve Kessler: but thanks to everybody that’s attending, this was one of my favorite programs so far this year, so

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Steve Kessler: very much appreciative of your time, Betsy, and all those out there that joined us this morning.

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Betsey Helfrich: Thanks for having me and good luck. Everyone. The new School Year.

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Steve Kessler: Thanks, everybody.

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Betsey Helfrich: Thanks.

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Steve Kessler: Bye.

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Betsey Helfrich: Hi.

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Betsey Helfrich: thanks. Steve.

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Steve Kessler: Yeah, thank you. Betsy.