Update on the NYC Busing Situation
Does the DOE’s unilateral change in learning structure relieve them of the responsibility of transporting students with disabilities to their educational placements?
There have been a number of developments in New York City busing since the last time I wrote about it. These developments actually hit on something that comes up a lot on this blog, which is the gap between what the city must do under the law and what actually happens in real life.
The Office of Pupil Transportation recently had a meeting with a number of stakeholders in the world of busing. They tried to address some of the concerns that parents have voiced about what is going to happen with busing at the beginning of the school year. At the start of the meeting they gave some background, explaining that all of the transportation contracts were canceled in the spring when the pandemic hit and schooling went remote. That means New York City school buses have sat idle for several months, and so the transportation companies laid off much of their staff.
To bring buses back they need to resign some of their contracts and hire (and do background checks on) all new staff. Additionally, the buses need to be inspected. The good news is that the majority of contracts have already been signed and some of those inspections have been completed. However, the bad news is that the DOE doesn't expect to have the buses ready for the beginning of the school year. So what is the DOE's legal obligation?
The answer to that question 's informed by a September 9th memo from the New York State Education Department. Betty Rosa, the interim commissioner, gave guidance on pupil transportation for students who were attending non-district instruction. That includes private schools, whether state-approved or non-state-approved. Rosa confirmed that students with disabilities are entitled to transportation from school districts regardless of whether the local educational agency is implementing in-person, hybrid, or remote instruction.
This is welcome news. It's something that we have been saying as well — especially if the students have specialized transportation guaranteed through their IEP. As far as implementing the guidance, the DOE has come up with two different schemes to deal with the lack of buses: MetroCards for eligible students to get to and from their schools or reimbursing parents for transportation costs..
Previously the special ed law community assumed that the only way parents were going to get reimbursed was by suing for reimbursement. Now that question is more open because the DOE is saying that they are going to be rolling out a reimbursement program. That means parents may have an avenue to getting reimbursed without the need for a lawyer. The DOE hasn't really explained what that process will look like, but I'm hopeful that it will be an easy one for parents to navigate.
It's always interesting to see the interplay between what the DOE is obligated to do, and how they fulfill that obligation. It's still an open question of how well these stop-gap measures are going to work — but at least parents can plan on there not being regular busing.
Jonathan Gottlieb
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