Legal Updates


THE DEPARTMENT OF PUBLIC INSTRUCTION ISSUES NEW GUIDANCE ON SPECIAL EDUCATION TRANSPORTATION QUESTIONS

April 24, 2018

In January, the Department of Public Instruction (“DPI”) issued Special Education Informational Bulletin 18.01 on special education transportation questions. The new special education bulletin replaces Special Education Informational Bulletin 03.06. The new bulletin addresses some of the most frequently asked questions regarding a school district’s duty to provide specialized transportation for students with disabilities.

When Should Transportation Be Included in a Student’s Individualized Education Program?

One of the most frequently asked questions regarding transportation is how the Individualized Education Program (“IEP”) team determines when to include transportation as a related service. DPI advises that the IEP team must consider how a student’s disability affects his or her need for transportation. The IEP team’s consideration should include whether the student’s disability prevents him or her from getting to school in the same manner as non-disabled students.

The IEP team must determine whether transportation is necessary as a related service on an individualized basis. It is not appropriate to include transportation as a related service in all IEPs or to base the decision on a student’s category of disability. The IEP team should consider an individual student’s needs such as: medical and health needs; need for adaptive or assistive equipment; need for safe transfers; accessibility of curbs, sidewalks, streets, and public transportation; the student’s capacity to travel to school safely and efficiently; the student’s behavioral issues; and other relevant factors.

If transportation is necessary, as a related service, for the student to benefit from special education, the IEP team must also appropriately document the transportation services. DPI recommends that the IEP team document the type of vehicle to be used, any required equipment, personnel to be utilized, pick up and drop off procedures, and goals for transportation.

Can Confidential Pupil Information Regarding Disabilities Be Shared With Transportation Personnel?

Special Education Informational Bulletin 18.01 also addresses what information regarding a student’s disability may be shared with transportation personnel such as transportation managers and bus drivers. In the Bulletin, DPI emphasizes that the communication with transportation personnel about student special education needs and supports must comply with state and federal law regarding confidentiality of pupil records.

Under state and federal law, a school board may determine which school officials have legitimate educational interests, including safety interests, in student records. A school board may determine that transportation personnel, such as transportation managers and bus drivers are school officials with a safety interest in student records. The Family Educational Rights and Privacy Act (“FERPA”) also requires school districts to notify parents how the District defines the term “school official” for purposes of disclosing pupil records. 34 CFR § 99.7.

Transportation contactors may be designated as “school officials” for pupil record purposes provided that the contractor performs functions that would be performed by school district employees and they remain under direct control of the school district regarding the use and maintenance of pupil records. School districts that intend to share confidential pupil records with transportation personnel must identify them as “school officials” in the annual FERPA notice and must ensure that anyone receiving confidential pupil information is trained on protecting confidential information.

Is a School District Required to Provide Specialized Transportation for Extra-Curricular Activities?

School districts are not required to provide transportation to and from extra-curricular activities under Wisconsin law. Wis. Stat. § 121.54(7). However, DPI explains in the Bulletin that a school district is required to provide specialized transportation for extra-curricular activities if an extra-curricular activity is included in a student’s IEP and specialized transportation is included as a related service. Additionally, transportation may be required under other laws, such as Section 504 of the Rehabilitation Act, where it is necessary for students with disabilities to have an equal opportunity to participate in extra-curricular activities.

Conclusion

The new Special Education Informational Bulletin covers a wide range of special education transportation questions in addition to the topics discussed here. It is advisable for school districts to review their transportation policies and consult with legal counsel to ensure that the policies are consistent with DPI’s latest guidance.

For questions regarding this article, please contact the author, Attorney Chad P. Wade (email: cwade@strangpatteson.com; telephone: 844.833.0826), or your Strang, Patteson, Renning, Lewis, & Lacy, s.c., attorney.

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