OSEP Letter - Transportation/FAPE

20 IDELR 1155
Anonymous, Letter to (Interpretation of FAPE/Transportation)
Office of Special Education Programs
[Inquirer's Name Not Provided]

Digest of Inquiry
November 11, 1992

What is the meaning of the word "free" as used in the FAPE requirement of Part B of the IDEA?
Specifically, are expenditures for items like art supplies, pencils, and paper permissible
expenditures for parents of students with disabilities within the definition of this word?
What is the meaning of the word "appropriate" as used in the term FAPE in Part B of the IDEA?
Do an LEA's transportation services for students with disabilities, which require them to board a
school bus shortly after 6 a.m. and ride for an hour or more to attend classes and take a lengthy
return trip home, discriminate against these students?

Digest of Response
October 8, 1993
Public Agency May Charge Incidental Fees for School Supplies In order to qualify as "free" under Part
B, special education and related services must be provided at no cost to parents. However, a public
agency is not precluded from charging certain "incidental" fees to the parents of students with
disabilities for items such as art, chemistry, or lab supplies, provided that similar fees are also charged
to the parents of nondisabled students as a part of the regular education program.

"Appropriate" Requires Education to Address Unique Needs of Child Although Part B does not
specifically define the term "appropriate," the requirements of Part B are intended to ensure that each
child with a disability receives an educational program which addresses his or her unique needs.
These needs are addressed through Part B's provisions for evaluation and placement procedures,
least restrictive environment procedures, IEP procedures, and procedural safeguards. Lengthy Bus
Rides to and from School May Be Discriminatory A school district's transportation services, which
required some students with disabilities to board a school bus shortly after 6 a.m. and ride for an hour
or more in order to attend classes and take a lengthy return trip home, must comply with Part B
requirements for transportation to students with disabilities. Additionally, the district's transportation
provisions for these students may raise issues relating to Section 504 of the Rehabilitation Act, which
prohibits discrimination on the basis of disability.

Text of Inquiry
As the [ ] Tourette Support Group and the Attention Deficit Disorder Association of [ ] I am frequently
asked to provide information to our readers relating to federal laws, specifically 94-142, dealing with
our handicapped children.

The term "Free and Appropriate Education" (FAPE) seems simple enough. However, I would like some
interpretation from your office relating to each of these terms. I have been told by a representative of
the La. State Department of Education that it is the sole responsibility of the school system to define
what is appropriate. I have a problem with this. It is like turning the hen house over to the fox. I have
also been told by outside advisers that it is the responsibility of the IEP committee. If this is so then the
parent should have some say in just what is appropriate. However, as a parent who has been to many
IEP meetings what is offered seems to have always hinged on what the school system wishes to make
available and that is usually contingent upon what they have chosen to offer system wide within their
budget. Money seems to always to the driving force and never the needs of the children.

One would think that the word FREE would be simple to define. Either something is without cost or it
isn't. However, my child seems to always need "fees" for this, that, or the other. As an example, he has
been charged a "fee" for art supplies. It could be chemistry lab supplies or shop supplies. I have been
told by one outside advisor that "art supplies" is not education. I have been told my another advisor
that so long as nonhandicapped children are charged then the handicapped can also be charged.
What about those who do not have the money? There was a time when all children not only got free
books but they also got paper and pencils. Today you must buy your own paper, pencils and other
supplies that the teacher dictates.

Another critical problem for children which are ADHD is transportation. The system is supposed to
furnish transportation and it does. However, for an ADHD child that is asked to get on a bus at not long
after six in the morning and ride for an hour on more to some distant school that has the program that
they need is an invitation to serious trouble and disaster. The child, especially one in BD, is being set
up for failure. The return ride in the evening is just as bad. Can a long bus ride for such a child be
considered appropriate. How long is long? What are the alternatives for the child and parent?

I have been forced to shoulder the expense of private transportation to school for my child for years in
order to avoid all of the problems attendant with his using the school transportation system. This
seems to be neither FREE or APPROPRIATE. The school system says take it or leave it.

We as parents of handicapped children did not write these laws and neither did the school systems. I
can understand that they do not like these laws since they make extra demands on their resources.
But the fact of the matter is, if the congress says FREE it would seem to be all inclusive. FREE should
be FREE. It should not be NEARLY FREE or sometimes FREE or FREE when the school system wants
it to be. If the congress did not mean FREE they should not have said FREE. I do not wish to be picky,
but I will be the devil's advocate.

If the congress wanted to provide handicapped children with special rights and privileges under these
laws it should not be up to the school systems to take those rights away no matter how they may feel
about the laws and the demands that they place upon the systems. Those of us who have to live with
these laws are not asking for special interpretations or special privileges. All we want is what the laws
say we are entitled to. We just need to know what we are entitled to by your definition and not by the
definition of the school system or the state department of education who may find it onerous to comply
with the laws and wish to evade and avoid as much of the responsibility placed upon them by the laws
as they can get away with.

I will appreciate your providing me with interpretations relating to FREE and APPROPRIATE which I can
pass on to our readers and members which they might use in dealing with a recalcitrant school system
that might not wish to fulfill its obligations under the laws. Your response to the bus problem will also be
appreciated.

Text of Response
This is in further response to your letter to former Assistant Secretary Robert R. Davila regarding the
free appropriate public education (FAPE) requirements of Part B of the Individuals with Disabilities
Education Act (Part B). You are requesting this Office's interpretation of the terms "free" and
"appropriate" as used in Part B. Also, you express concern about the transportation services to and
from school being provided to your child who has a disability, and to other children with disabilities, by
your local school district. A copy of the Part B regulations at 34 CFR Part 300 is enclosed for your
information. I hope you will excuse the delay in may reply.

Under Part B, States and local school districts have an ongoing responsibility to make FAPE available
to all eligible children with disabilities within the State. 20 U.S.C. § 1412(2). FAPE is defined in Part B
as:

special education and related services that:

(a) Are provided at public expense, under public supervision and direction, and without

charge;

(b) Meet the standards of the State educational agency, including (Part B requirements);

and

(d) Are provided in conformity with an individualized education program that meets the

requirements under §§ 300.340-300.350. 34 CFR § 300.8; see also 20 U.S.C. § 1401(a)(18).

You indicate that your child has had to pay "fees" for such things as art supplies and that today
parents must even supply their children with paper, pencils and other supplies. You question whether
these expenditures are permissible expenditures for parents of students with disabilities, and would like
to know how the word "free" is defined under Part B.

Under Part B, special education and related services must be provided at public expense. Therefore,
in order for education to be "free" under Part B, special education and related services must be
provided at no cost to parents. The Part B regulations define the term "at no cost" to mean that all
specially designed instruction is provided without charge, but does not preclude charging incidental
fees that are normally charged to nondisabled students or their parents as a part of the regular
education program. Thus, it is permissible under Part B for public agencies to charge parents of
children with disabilities for certain "maintenance fees," such as for the art, chemistry, or lab supplies
mentioned in your letter, provided they are incident fees normally charged to parents of nondisabled
children as part of regular education programs.

Your letter also asks whether Part B defines the term "appropriate." While there is no specific definition
in Part B for the term "appropriate," Part B requirements are designed to ensure that each child with a
disability receives an educational program that addresses that child's unique educational needs.
Specifically, Part B requirements for determining what constitutes FAPE for an individual child include
evaluation and placement procedures at 34 CFR §§ 300.530-300.534; least restrictive environment
procedures at 34 CFR §§ 300.550-300-556; individualized education program (IEP) procedures at 34
CFR §§ 300.340-300.349; and procedural safeguards available to children with disabilities and their
parents at 34 CFR §§ 300.500, 300.502-300.515. The goal of the requirements cited above is to
provide a method for determining what is an appropriate program in light of each child's individual
needs. Through the Part B procedural safeguards, parents and school districts may challenge what
constitutes an "appropriate" special education program for an individual child. The Part B due process
procedures at 34 CFR §§ 300.506-300.508 are also available to parents who disagree with a local
educational agency (LEA) proposal or refusal regarding the identification, evaluation, or educational
placement of the child, or the provision of FAPE to the child. Another avenue available to individuals in
Louisiana who believe that a violation of Part B has occurred is to file a complaint with the Louisiana
State Department of Education (LSDE). LSDE must investigate and resolve any complaint that it
receives within 60 calendar days, in accordance with the complaint provisions applicable to Part B at
34 CFR §§ 300.660-300.662. The complaint provisions can be found on Page 44829 of the enclosure.

To request a due process hearing, or to file a complaint, you can contact the State educational agency
official listed below, at the following address and telephone number:

Leon L. Borne, Ph.D.

Assistant Superintendent

Office of Special Educational Services

Louisiana State Department of Education

P.O. Box 94064

Baton Rouge, Louisiana 70804-9064

Telephone: (504) 342-3633

Finally, your letter also expresses concerns about your school district's provision of transportation
services to children with disabilities. The Part B regulations define transportation as a related service,
where that transportation is required to assist a child with a disability to benefit from special education.
34 CFR § 300.16(b)(14). Transportation includes--

(i)

Travel to and from school and between schools;

(ii) Travel in and around school buildings, and

(iii) Specialized equipment (such as special or adapted buses, lifts, and ramps), if

required to

provide special transportation for a child with a disability.

If a child with disabilities needs transportation to benefit from special education, then transportation
must be provided as a related service. In all instances, the child's need for transportation as a related
service and the type of transportation to be provided are issues to be discussed and decided during
the evaluation process and IEP meeting. If the transportation arrangement decided upon is provided
as a related service, it must be included in the IEP. If agreement cannot be reached in the IEP meeting,
then the issue may be taken to a due process hearing.

You indicate that in your LEA in order for some students with disabilities to obtain transportation to and
from school, the students have to board the bus shortly after 6 a.m. and ride for an hour or more in
order to attend classes, with a lengthy return trip. Because of this transportation arrangement, you
indicate that you have had to pay for your child to use private transportation to attend school.

In addition to the requirements of Part B relevant to transportation for children with disabilities,
discussed above, your letter also may be raising issues that relate to the requirements of Section 504
of the Rehabilitation Act of 1973 (Section 504). Section 504 is a civil rights statute that prohibits
discrimination on the basis of disability by recipients of Federal financial assistance from the
Department. The Department's Office for Civil Rights (OCR) is the branch of the Department that
enforces Section 504. For further information about applicable Section 504 requirements regarding
transportation, you may wish to contact:

Mr. Taylor D. August
Regional Civil Rights Director
Office for Civil Rights, Region VI
U.S. Department of Education
1200 Main Tower Building
Suite 2260
Dallas, Texas 75202-9998

I appreciate your taking the time to express your concerns regarding these important issues. I hope
that the information contained in this letter is helpful to you and to the other members of your
organization. If this Office can be of further assistance, please let me know.

Thomas Hehir
Director
Office of Special Education Programs

400 MARYLAND AVE., S.W., WASHINGTON, D.C. 20202

________________________________________________________________________________

20 IDELR 1155

Requests for a copy of the original letter, or questions regarding the letter, may be directed to OSEP.

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES