Among areas of focus of school transportation litigation, the transportation of students with disabilities is especially complex. The use of Child Safety Restraints (CSR) — often generalized, simplified or incorrectly characterized as safety harnesses — has led to tort claims, civil rights complaints and due process requests.
National Highway Traffic Safety Administration (NHTSA) guidelines and Federal Motor Vehicle Safety Standards (FMVSS, at 213 and 302) include federal statements about CSRs. Individual states may have statutes or regulations that address the use of “mechanical restraints” generally. Typically, however, legal challenges stem from some parents’ basic antipathy toward the use of any device that limits movement. As an Alabama court commented in In the Matter of P.T. v. Jefferson County Board of Education, discussed below, “Of course the plaintiff does not want P.T. harnessed. No parent would.”
But school districts have a genuine interest in protecting the safety of all students on the bus, as well as the driver, bus attendant and even occupants of other vehicles and pedestrians. These individuals are all potential victims of driver distraction or injury if a student who will not remain in his seat suddenly gets out of his seat with harmful consequences. Other students may have disabilities that interfere with or make impossible their ability to hold themselves in an upright position. Such youngsters, too, may need a safety-seating device to allow them to ride to school.
School attorneys, like educators and school transportation officials, must be alert to a number of overlapping issues when the use of CSRs is considered or implemented:
How these considerations can potentially stave off, or, at least, contain adversarial relationships is best understood in the context of reported cases.
Parent’s case reaches dead-end in four-year battle over harness
On June 28, 2006, in an unpublished decision, the 11th Circuit Court of Appeals ruled in favor of an Alabama district’s use of a harness on the school bus (P.T. v. Jefferson County Board of Education, 46 IDELR 3). The court affirmed the district court’s Nov. 29, 2005, judgment without comment, other than to call the parent’s arguments “meritless.”
P.T. had been diagnosed as autistic, and was 5 years old at the time of the incidents leading to this litigation. During the summer of 2002, the supervisor of special-education transportation resorted to use of a safety harness when P.T. had a tantrum and accosted the bus attendant who accompanied her to an IEP-mandated program.
At the due process hearing that preceded the actual litigation, it was accepted as fact that P.T.’s mother had not been notified of the decision to use the harness and was “floored” when “she found this child zipped and belted down in the harness.” However, the parties agreed that the parents voiced no objection or concern until fall of 2002, and had, in fact, indicated on a transportation registration form that their daughter might need a special restraint.
At the start of the school year, the district had attempted transportation on a special-education bus with a total of six children, a driver and an aide, using only the lap belt for P.T. By October, however, the girl’s tantrums and injurious behavior had increased, and she had left her seat on the bus on several occasions. A transportation staff member was asked to ride the bus to observe. The district’s director of exceptional education directed an autism specialist to observe behavior precedents. With information from these observations, the issue was addressed at an IEP meeting. P.T.’s mother objected to the harness and asked that other options be considered.
P.T.’s size, impending puberty and the often unpredictable nature of her behavioral episodes concerned the district in 2002. The district considered and tried options besides restraints, including padding the bus window to minimize the possibility of injury when P.T. pounded the window; providing snacks prior to her getting on the bus to eliminate hunger as an apparent contributor to the escalating behavior; and removing her shoes when she entered the bus to avoid her throwing them at others.
By January 2003, she had bolted for the rear emergency exit of the bus on at least one occasion. The district concluded that alternatives were not viable and another IEP meeting was called. P.T.’s parents did not attend; the use of the harness was restarted. The director of exceptional education wrote to P.T.’s parents to notify them of the decision on the first day the harness was used.
The district court’s decision noted that, with the harness, P.T. remained in her seat, “her tantrums have decreased and her behavior is more frequently acceptable. The [district] has kept behavior data on the bus to see if the harness increased P.T.’s tantrums (as her mom anticipated), but found no evidence that it did.”
Her parents had not offered evidence that “less restrictive approaches which had not already been tried were available.” They were not available to transport their daughter. They argued that the district had not considered assigning a one-on-one aide to P.T. The testimony of the aide assigned to support all six children on the bus was that “she devoted all her time and attention to P.T., but could no longer control P.T.”
The school transportation context
The court found that the district’s statutory duty to provide transportation services to P.T. did not incorporate allowing the child “to roam a moving bus at will.” Like a number of previous decisions by other courts, the district court focused on the context in which the harness was used: “Unlike using restraints in a classroom, a bus is a vehicle designed for transportation, not education. Because a vehicle moves in traffic, tantrums, behavioral outbursts, throwing objects and attacking others is much more dangerous behavior in a bus than in a classroom.”
Moreover, the hearing officer had noted, “Although special transportation is a related service, a related service is by its nature and definition conceptually distinct from ‘special education’ or ‘specialized instruction’ itself … [S]pecial transportation … provides access to the educational setting. However transportation is not the educational setting itself or a component of a program of specially designed instruction developed for the purpose of meeting the unique educational needs of children with disabilities.”Harness selection, fit, installation and securement
And, the fact that “the harness was not in the nature of a straightjacket, as described by the plaintiff, but more in the nature of a harness used in a child seat,” impressed the court in P.T. “It allows P.T. movement of her arms and legs, but prevents her from getting out of her seat or removing her shoes to throw.” The hearing officer had noted that “when the harness itself was installed, it was adjusted and supplemented with a sheepskin pad to minimize any chafing or irritation.”
Chafing of a CSR was a secondary issue in a March 30, 2007 case decided by the U.S. District Court, Northern District of Illinois, Brett K., Jr. v. Momence Community Unit School District No. 1. The injury caused by a chafing safety vest was abated during the winter months when Brett wore a heavy coat. The parties agreed that the safety vest would be replaced prior to the onset of warm weather.
Harness choice leads to tragedy in Pennsylvania case
Neither P.T. nor Brett K., Jr. involved a student’s physical injury or death. Sadly, the selection, fit, installation and securement of a CSR was a pivotal issue in Susavage v. Bucks County Schools Intermediate Unit No. 22 et al., 37 IDELR 94 (June 19, 2002), and 36 IDELR 32 (Jan. 25, 2002), decided by the U.S. District Court, Eastern District of Pennsylvania, but ultimately settled for a total of $3,625,000 after defeat in significant part of the Intermediate Unit’s Motion to Dismiss.
Cynthia Susavage, a 6-year-old preschooler, had Batten syndrome, a rare neurological condition characterized, in part, by loss of coordination. The IEP developed by Quakertown Community School District, Bucks County Intermediate Unit No. 22 (BCIU) and the Susavages called for school transportation. A special car seat was ordered, but not available. BCIU provided a four-point harness to the Levy Bus Company, a private contractor that, according to the judge, obviously needed special training.
On Dec. 11, 1998, “the harness was put on backwards with the top of its zipper against the front of Cynthia’s throat. Only two of the four points were secured and these were secured with straps from other harnesses.” Cynthia, who was nonverbal, “lacked the capacity to help herself once she was restrained by the harness that secured her to the bus seat.” During the 20-minute bus ride — with no attendant on the bus — Cynthia slipped through the harness and, after nine months, died as a result of strangulation.
The district court held that a reasonable jury could find that “in light of BCIU’s actual knowledge of the special risk to Cynthia that was presented by her condition, its failure to require that only a proven safe method of transport be utilized could be characterized as deliberately indifferent to the statutory duty of providing safe transportation to the child.”
Moreover, the court found that it was reasonable for BCIU to infer that the bus contractor “needed special training and supervision to ensure her safe transport. This is especially true because BCIU knew that Cynthia required a seat restraint system tailored to her particular needs and this had not yet been obtained.”
Clearly, educators and transporters must understand the implicit premise in the Official Commentary to the 2006 IDEA Regulations that compromising student safety is unacceptable: Among the situations that might warrant a short delay in implementation of the IEP “are circumstances that require a short delay in the provision of services (e.g., finding a qualified service provider, or making transportation arrangements for the child).”
“Clear and present danger” supports daily restraint
Determination of type of Child Safety Restraint System does not always resolve whether use of the device is necessary on a daily basis. Mukilteo School District, decided by the Washington State Educational Agency on April 29, 2005 (43 IDELR 231), concerned behaviors engaged in by a 12-year-old student — who had been diagnosed with oppositional defiant disorder, intermittent explosive disorder, mood disorder and reactive attachment disorder — including intense violent episodes that sometimes lasted for more than two hours.
Intra-district communication failed: while the transportation manager communicated the need for a harness to the bus driver, she told the driver little about the boy’s background and nothing about the type of harness. “She stocked a harness on the bus when she began to transport the student, but the harness was inadequate for its intended use.”
On two separate occasions in September 2004, two days apart, the harness failed to keep the student from kicking, slapping and pinching the bus attendant, and kicking and hitting the bus window. The district determined that the boy would be required to wear the safety harness at all times during the bus ride. His father objected, and asked that he wear it only when either the father or the school determined it was necessary. The district protested that it was a safety issue and that staff could not place the boy in the harness while the bus was traveling down the freeway. An addendum to the IEP required a quarterly evaluation and ongoing consideration of less restrictive alternatives.
The father was unable to attend a February 2005 IEP meeting to discuss transportation. Although the district had proposed decreasing use of the harness when the boy’s behavior improved, on the same day the district was mailing the proposed IEP amendment to reduce mandatory use of the harness, the student had a significant outburst during morning transportation. The district withdrew its proposal to reduce mandatory wearing of the harness; a hearing ensued.
The father protested the district’s holding the quarterly transportation review without him. He also asserted that “the mandatory use of the safety harness at all times while the Student is being transported is an unacceptable and unduly restrictive, aversive intervention” in contravention of state law.
The Washington State Educational Agency held that the harness was necessary to address “a clear and present danger, and, therefore, complied with state law. Daily use of the safety harness is allowed under these circumstances, even where the student is not aggressive or assaultive on a daily basis, because the student’s behavior is unpredictable.”
“Houdini-like” students need special attention
Montoya v. Houston Independent School District, 2005 Tex. App. LEXIS 2409 (March 31, 2005) arose because of injuries to Marcos Montoya, an 8-year-old student who had been diagnosed with mental retardation and a history of aggressive behavior on the school bus, including a pattern of leaving his seat, running around and attempting to exit the bus using the emergency exit. His bus seat was equipped with a special child-proof harness to restrain him.
In two incidents in two weeks, Marcos freed himself from his harness. On May 14, 2002, he opened the rear emergency door of the bus. Although he did not fall out on May 14, he freed himself again on May 15, opened the emergency exit while the bus was in motion, and fell from the bus, sustaining injuries.
Among the allegations was a claim that the driver was negligent in improperly attaching or using a child-proof harness and restrain Marcos. The court found that such failure was not the actual cause of the boy’s injuries. Rather, “the actual cause of Marcos’s injuries was Marcos’s affirmative act of opening and exiting the rear emergency door of the bus. At most, the driver’s negligent use furnished the condition which enabled Marcos to exit the bus and injure himself.”
It is important to consider the student’s escape tendencies and abilities, especially in light of the child’s size and strength. When the complaint alleges that the device is, simply, the wrong one, given the predictable consequences, there’s a greater likelihood of liability for the district.
Transportation team must collaborate
It seems unlikely that the use of CSRs on school buses will be the subject of abuse and neglect investigations into use of restraint as a behavior management and/or disciplinary tactic in the classroom like those recently conducted by federally funded Protection and Advocacy agencies. Nevertheless, so essential are these devices to the safe transport of many students with disabilities that it is critical that the appropriate legal and operational procedures are used. School officials must recognize that the transportation team is composed not only of transportation officials and bus drivers, but of all those individuals who function in ways that contribute to good decision-making in many areas of school transportation.
Peggy Burns is an attorney, consultant and owner of Education Compliance Group Inc. She is the editor of Legal Routes and developer of two video training programs, “Steering Clear of Liability: Training for School Bus Drivers” and “Confidential Records: Training for School Bus Drivers.” She is also co-author of School Bus Stops: A Safety Guide for Transporters. Peggy can be reached at (888) 604-6141 or [email protected].
This article was published in the October 2007 issue of National School Board Association’s Inquiry & Analysis, and is reprinted by permission.