STATE OF RHODE ISLAND
COMMISSIONER OF EDUCATION
B. DOE v. PROVIDENCE SCHOOL DEPARTMENT
RIDE Case No. 18-45
INTERIM ORDER
Held: Given the circumstances, Providence’s responsibility for transportation as a related service to a special education student placed at the Sargent Center in Warwick extends to mother’s home in East Providence on school days when student resides there. Full hearing on this issue will be conducted in pending due process proceeding.
Introduction
This matter concerns a request by B. Doe, on behalf of her minor child, for an interim protective order pursuant to Rhode Island General Law 16-39-3.2 directing the Providence School Department to immediately “provide her son with transportation (and/or transportation reimbursement), between her home in East Providence and [her son’s] school (Sargent Center in Warwick, RI), each and every school day on which, per court order... [her son] resides with her at her East Providence address...” pending resolution of a due process hearing. [Petitioner’s Exhibit 1].[1]
Background
Student Doe is 17 years old and in the joint custody of his divorced parents. His father, with whom Doe is placed, lives in Providence and his mother, who has visitation rights, lives in East Providence. Per Family Court order, Doe lives with his mother from Wednesday after school to Friday morning, and every other Friday after school through the weekend. Doe lives with each parent the same amount of time. His mother is blind, unable to drive an automobile, and lives in subsidized housing.
Doe is enrolled in the Providence public school district from his father’s address. Pursuant to an individualized educational program (IEP) with Providence, Doe attends the Sargent Center in Warwick. Providence provides Doe with door-to-door transportation to and from the Sargent Center from Doe’s father’s home in Providence, but not from his mother’s home in East Providence.
The “related service” section of Doe’s 2016-17 IEP states that he “will receive door-todoor bus transportation to and from Sargent Center.” In December 2017, a new IEP was developed which states that Doe “will receive door-to-door bus transportation to and from Sargent Center/ Providence home.”
Positions of the Parties
Petitioner asserts that the Individuals with Disabilities Act (IDEA) and the federal and state regulations that implement it mandate that school districts provide a free appropriate public education (FAPE) to children with disabilities. FAPE is defined as “special education and related services that... are provided at public expense, under public supervision and direction, and without charge.” Related services expressly include transportation. There is no basis in federal or state law to impose artificial geographic boundaries on this related service. Case law shows that related services such as transportation must be provided based on individual circumstances and needs in order to promote access to FAPE. The receipt of special education rights and services may not be conditioned on the forfeiture or waiver of other rights, such as the constitutional right to familial association. Doe’s mother’s circumstances are dictated by her disability and therefore need to be accommodated. Providence must provide or pay for transportation to and from Petitioner’s home and the Sargent Center pending full disposition of this matter in due process.[2]
Providence contends that it is not obligated to transport Doe to an out-of-district placement from another city because his current IEP states that he is to be transported from the “Providence home.”
Discussion
Given the fact that student Doe lives with each parent for same amount of time, it naturally follows that he has two residences -one in Providence with his father and one in East Providence with his mother. While we have addressed this scenario with regard to school enrollment,[3] we have not addressed it with regard to transportation as a special education related service.
Transportation is a related service under IDEA.[4] Related services are designed to enable a child with a disability to receive FAPE. As with other related services, a public agency must provide transportation if it is required to assist the child with a disability to benefit from special education. A child’s IEP Team is responsible for determining both if transportation is required to assist a child with a disability to benefit from special education and related services, and how the transportation services should be implemented. If the IEP team determines that a student with a disability needs transportation to benefit from special education, it must be included in the student's IEP and provided as a related service at public expense and at no cost to the parents. Transportation includes travel to and from school.
In its legal argument, Petitioner cites Alamo Heights Independent School District v. State
Board of Education, et al.. In that case, the only after-school child care a working mother could find for her son was located a mile outside of the district boundary. The mother asked the school district to provide out-of-district transportation for her son from his educational placement to his caretaker. The district refused. The United States Court of Appeals for the Fifth Circuit stated:
Section 1401(a) (17) of Title 20 specifically provides: "The term 'related services' means transportation, and such... other supportive services... as may be required to assist a handicapped child to benefit from special education." The Act does not further define "transportation." The parties have not cited, nor can this court find, any case law directly addressing the out-of-district dimensions of this transportation issue. A district court in Pinkerton v. Moye, 509 F. Supp. 107 (W.D. Va. 1981), however, was faced with an analogous situation. In Pinkerton, the services required by the handicapped child were not available in her home school district, although they were available in a neighboring school district. The court refused to require the home school district to furnish the special services, finding that the provision of services to the child through the adjacent school district was sufficient under the Act. But the court also found that, given the child's "special situation," it would be "appropriate" to require the school board to reimburse the child's parent if the parent decided to obtain alternative transportation to the neighboring school that would be more direct and accommodating than that provided by the home school district. Id. at 109. This analysis suggests that the "transportation" required as a "related service" under the Act is not arbitrarily limited by the geographic boundaries of the school district so long as it is required for the special circumstances of the handicapped child and is reasonable when all of the facts are considered. The district court implicitly found Mrs. G.'s request for one-mile out-of-district transportation for Steven reasonable. The School District has not argued that the transportation would in any way create a burden, much less an unfair burden, on the School District or on other children being transported. There is neither evidence nor argument that going a mile out of the district boundaries would create any substantial additional expense, disrupt efficient planning of school bus routes, entail additional time to transport other children, or in any other way inconvenience other children on the bus route. Instead, the School District has merely insisted that, although "generic" transportation is defined as a related service required to enable a handicapped child to benefit from special education, out-of-district transportation, because it is out-of-district, is not. We cannot agree. Unless the transportation request is shown to be unreasonable, the Act requires that such transportation be provided as a related service.[5]
In responding to a letter asking for clarification regarding the obligation of local educational agencies (LEAs) to provide transportation services to parentally-placed private school children with disabilities to and from LEA-recommended special education services, the U.S. Office of Special Education Programs has stated that “IDEA does not restrict the provision of transportation to locations within an LEA or within a State...”[6] Moreover, when a parent provides a service, such as transportation, that should have been provided by the school district as a related service needed for FAPE, reasonable reimbursement for the parent’s service is warranted.[7]
As claimed by Petitioner, there is no general legal prohibition against “out-of-district” bus transportation when it is a related service in an IEP for a child with a disability. While the Alamo Heights case is not binding, we are persuaded by the Fifth Circuit’s decision that the reasonableness of an out-of-district transportation request for an IEP student should be judged on the basis of the particular circumstances of the case. Doe’s mother’s visitation rights are at stake. She is blind, cannot drive an automobile and living in subsidized housing. In Rhode Island, “the foremost consideration in the determination of visitation rights is the best interests of the children ...” and such rights “are to be strongly favored and will be denied only in an extreme situation.”[8] The requested amount of weekly reimbursement, the proximity of the two cities involved and the possible availability of existing school bus routes to the Sargent Center demonstrate that this is not the type of situation that should cause Doe and his mother to lose visitation opportunities. Pending full hearing at the due process level, Petitioner has shown that the request for transportation is reasonable.
As for the modification of Doe’s most recent IEP to limit transportation to and from his “Providence home,” we have concerns about the impetus for this change. The limiting language in the current IEP is at odds with the FAPE to which Doe is entitled. If it is a waiver of rights afforded by IDEA, the waiver must be knowing and voluntary to be effective. The circumstances surrounding this interim order create doubt about the parents’ intention. This also may be an issue for the due process hearing.
Conclusion
Petitioner’s request for transportation for Doe, or payment of paratransit costs therefor, between her home in East Providence and the Sargent Center in Warwick on school days when he is residing with her is reasonable pending resolution of a pending due process hearing. The Providence School Department is hereby ordered, on an interim basis pursuant to §16-39-3.2, to provide such transportation or payment ($32 or $40 on alternate weeks) forthwith.[9]
Footnotes
[1] A hearing was held on this request on April 17, 2018.
[2] Petitioner alleges that the cost of paratransit to transport Doe to and from school totals $32 or $40 on alternate weeks.
[3] Residency of Student D.R. Doe, Commissioner’s decision 0022-00, June 26, 2000; In the Matter of the Residency of Student K. Doe, Commissioner’s decision 0022-11, September 21, 2011.
[4] See 20 USC §1401(a)(17) and 34 CFR §300.34(c)(16), as well as §300.34(c)(16) of the Rhode Island Regulations Governing the Education of Children with Disabilities.
[5] 790 F.2d 1153 at 1160 (1986).
[6] Letter to Ellen Chambers, December 27, 2016.
[7] See Hurry v. Jones, 734 F.2d 879 (lst Cir. 1984).
[8] Suddes v. Spinelli 703 A.2d 605 at 607 (1997).
[9] This interim order, heard and decided on an expedited basis as required by statute, is not binding on any issue to be decided after full hearing in the due process proceeding.
Paul E. Pontarelli
Hearing Officer
Approved:
Ken Wagner, Ph.D.
Commissioner of Education
Date: April 24, 2018