Transportation

Case law..transportation

23 IDELR 1099
State Educational Agency
March 1, 1996
Pennsylvania North Allegheny School District No. 705

Reimbursement to Parents, Related Services
Related Services, Transportation
Transportation, Entitlement to Transportation
Parents and Guardians, In General
Hearing Impairment, In General

Summary

A seven-year old student with a hearing impairment, whose parents were divorced and lived in separate school districts, alternated weeks between the parents' homes. However, the student attended the local school district in which his mother resided. A hearing officer determined the district did not have to provide transportation for the student when he resided at the father's home. The father appealed.

HELD: for the parent.

Since the student required transportation to attend school, the appeals panel concluded the district was obligated to provide it as a related service when the student lived with his father. Due to the district's failure to provide this required related service, the father was entitled to reasonable reimbursement for all transportation he had already provided. The hearing officer's decision was therefore reversed.

Before Hartwig, Gonick and Salvia, Appeals Panel Officers.

Appellate Officer: John Salvia, D.Ed.

Background

Gregory is a seven-year old disabled student whose parents are divorced. His mother lives in the North Allegheny School District (the District) where Gregory is currently receiving Hearing Support in a District resource room.

1 Gregory's father (Mr. P.) continues to live in Pittsburgh. By the terms of a custody order, physical custody is divided equally between his parents.

2 Gregory alternates living with one of his parents each week.

At Gregory's first IEP meeting in the District, the parties agreed to all parts of his IEP except transportation. Mr. P. sought to have the District also provide transportation during the weeks when Gregory lives with him. The District opined that it is not their responsibility to transport Gregory when he is living with his father outside the District. Mr. P. requested a due process hearing to decide the issue. The hearing was held in two sessions. In the first session (23 October 1995), a tentative agreement was reached, subject to subsequent approval by the father and the District's school board. However, no approvals were forthcoming, and the hearing was reconvened on 11 December 1995. The Hearing Officer ordered that the District had no obligation to transport Gregory when he lived with his father. Mr. P. filed exceptions to this decision in a timely fashion.

Discussion

The issue facing this panel is a simple legal question. 22 PA CODE § 14.33(b) requires that "the IEP team shall conclude that transportation to and from school. . .is a related service, if it determines that one of the following criteria has been met:

(1) The service in question is an integral part of an educational objective of the student's IEP.
(2) The service is needed to assist the student to benefit from or gain access to a special education program." It is undisputed that Gregory requires transportation to gain access to his special education program.
(3) Thus, only the interpretation of § 14.33(b) must be addressed.

The foremost principle of statutory construction is to examine the clear meaning of the statute, and we find the words of § 14.33(b) are unambiguous. The District must provide transportation. Even if the statutory language was unclear, and it is not, the intent of the law is clear. Exceptional students have a right to related services (including transportation). Therefore, the District is obligated to transport Gregory to and from his father's residence. Because the District failed to provide transportation, Gregory's father is entitled to reasonable reimbursement for mileage.

Order

Accordingly, this lst day of March, 1996, the Hearing Officer's order is reversed. It is hereby ordered that

(1) For the transportation he has already provided, Mr. P. shall be reimbursed at the Internal Revenue Code rate of $.30 per mile, and
(2) effective immediately, the District shall provide transportation between school and both of Gregory's residences.

4 Those exceptions not addressed in this order are dismissed. In accordance with 22 PA CODE Sec. 14.64(m), the parties are advised that this matter may be appealed to the Commonwealth Court of Pennsylvania or to the appropriate federal district court.

The parties are further advised that if there is any difficulty with the prompt implementation of this opinion, written complaints may be sent to the

Bureau of Special Education
Division of Compliance
333 Market Street
Harrisburg, PA 17126-0333

1 It is undisputed that Gregory is a resident of the District.
2 Joint Exhibit (JE)--2, p. 1.
3 The District provides transportation when Gregory lives with his mother; it only disputes providing transportation when Gregory lives with his father.
4 By way of dicta, we note that nothing in this order prevents Mr. P. and the District from coming to another arrangement by mutual agreement. For example, the parties might agree that Mr. P. will continue to transport Gregory and that the District will continue to reimburse him for his mileage.

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