Tips for Parents: Silent Waivers
Don’t Get Taken for (too long) a Ride; Watch Out for Silent Waivers in an IEP
By Robert Crabtree, Esquire – Kotin, Crabtree & Strong
Parents should keep an eye out for language in their IEPs that might have them unwittingly signing away the right to limit the duration of their child’s transportation to and from a placement to an hour or less each way. Massachusetts special education regulations provide, at 603 C.M.R. §28.06 (8)(a):
“The district shall not permit any eligible student to be transported in a manner that requires the student to remain in the vehicle for more than one hour each way except with the approval of the Team. The Team shall document such determination on the IEP.”
Notwithstanding this regulation, some school districts have begun to include the following language in IEPs:
“Parents understand student may be on the vehicle for over an hour due to distance and traffic constraints.”
Apparently, districts have been urged to incorporate this language into IEPs by a task force made up of several statewide organizations of school administrators that focuses on reducing the costs of transporting students. While we would support reasonable strategies that might make transportation to and from appropriate placements more efficient and cost-effective without harming students, the effort to include this sort of provision in IEPs undermines a basic protection tuned to students’ need to have their days devoted as much as possible to learning and free of the fatigue and distraction of excessive daily van-time.
Parents should be on the lookout for such language in a proposed IEP and, unless they are willing to allow the district effectively to ignore the travel duration limits that are ordinarily required, should refuse to permit what amounts to a blanket waiver of the requirement. At most they should reject the IEP in part, noting that they accept the statement regarding the possibility that transportation may take longer than an hour only insofar as unforeseen circumstances, such as inclement weather or major traffic disruptions, may on rare occasions cause the trip to last more than an hour but reject the statement insofar as it implies that travel between home and placement will typically require more than an hour.
If the reason for too long a ride is that a van is picking up too many students and/or bringing them to too many different locations, a parent can insist that the district correct the problem by, for example, assigning an additional van or rearranging the pick-up and drop-off schedule for the student to reduce travel time. In some cases, if the distance to a day program requires more than an hour’s trip, parents may be able to call for a residential placement for that reason, even if they could not otherwise make a case for residential services as necessary for the student to make meaningful progress.
While circumstances may make a longer ride unavoidable, the regulatory requirement for “the approval of the Team” to permit that exception to the rule means that the Team, including parents of course, must explicitly consider the factors that lead to that need, the potential effects on the student, and alternative ways to transport the student to reduce the expected length of the ride each way and/or to make the time on the ride productive toward the achievement of the student’s goals and objectives. If a ride must exceed the one hour limit, the Team should consider and provide any accommodations that might help reduce the wasted time and undermining impact of long rides – i.e., fatigue, lost learning time, etc. For example, a long ride in a van with several peers might offer an opportunity for a specialist to assist students in the development and practice of pragmatic skills or, in some cases, an aide might be able to help a student reinforce selected academic skills.
Robert Crabtree is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.