No, they can't. They are not saying he doesn't need it, they are saying they don't have the staff. If they can't provide what your child needs, they must contract with someone that can provide the service or hire appropriately trained staff.
Whether the problem is a shortage of staff or the cost of hiring appropriate staff is the school districts problem.
See https://web.archive.org/web/20080512052619/http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-6656.pdf :
Discussion: Section 300.34(a) and
section 602(26) of the Act state that
related services include other
supportive services that are required to
assist a child with a disability to benefit
from special education. We believe this
clearly conveys that the list of services
in § 300.34 is not exhaustive and may
include other developmental, corrective,
or supportive services if they are
required to assist a child with a
disability to benefit from special
education. It would be impractical to
list every service that could be a related
service, and therefore, no additional
language will be added to the
regulations.
Consistent with §§ 300.320 through
300.328, each childs IEP Team, which
includes the childs parent along with
school officials, determines the
instruction and services that are needed
for an individual child to receive FAPE.
In all cases concerning related services,
the IEP Teams determination about
appropriate services must be reflected in
the childs IEP, and those listed services
must be provided in accordance with
the IEP at public expense and at no cost
to the parents. Nothing in the Act or in
the definition of related services
requires the provision of a related
service to a child unless the childs IEP
Team has determined that the related
service is required in order for the child
to benefit from special education and
has included that service in the childs
IEP.
As an example, transportation is also a related service. The US Dept comments are:
Comment: A few commenters stated
that the definition of transportation
should require transportation to be
provided between school and other
locations in which IEP services are
provided. Other commenters requested
that the definition explicitly define
transportation as door-to-door services,
including provisions for an aide to
escort the child to and from the bus
each day.
Discussion: A childs IEP Team is
responsible for determining whether
transportation between school and other
locations is necessary in order for the
child to receive FAPE. Likewise, if a
childs IEP Team determines that
supports or modifications are needed in
order for the child to be transported so
that the child can receive FAPE, the
child must receive the necessary
transportation and supports at no cost to
the parents. We believe the definition of
transportation is sufficiently broad to
address the commenters concerns.
Therefore, we decline to make the
requested changes to the definition.
Changes: None.
Comment: Some commenters
recommended removing the term
special transportation from the
definition of transportation because the
term gives the impression that adapted
buses are used for a separate and
different transportation system, when,
in fact, adapted buses are part of the
regular transportation fleet and system.
These commenters stated that adapted
buses should only be used as a separate,
special transportation service if the
childs IEP indicates that the
transportation needs of the child can be
met only with transportation services
that are separate from the transportation
services for all children.
Discussion: We do not believe it is
necessary to make the change requested
by the commenters. It is assumed that
most children with disabilities will
receive the same transportation
provided to nondisabled children,
consistent with the LRE requirements in
§§ 300.114 through 300.120, unless the
IEP Team determines otherwise. While
we understand the commenters
concern, adapted buses may or may not
be part of the regular transportation
system in a particular school system. In
any case, if the IEP Team determines
that a child with a disability requires
transportation as a related service in
order to receive FAPE, or requires
supports to participate in integrated
transportation with nondisabled
children, the child must receive the
necessary transportation or supports at
no cost to the parents.
In other words, if a child require "X" for FAPE, cost, inconvenience, nor lack of staff are valid reasons for not providing it.
Now, how do you get it in? Your best chance may be to use a parent attachment to the IEP at https://web.archive.org/web/20091022104839/http://geocities.com/Athens/Oracle/1580/twin_documents.html . List your proposals before you go to the next meeting, fill the form in as you go. Have a copy made at the end of the meeting and leave one with-the sd committee chair.
Include your BIP proposals also.
Let us know how it goes.
