Prior Written Notice

Kellygh,

The reasonable and acceptable timeframe to provide a PWN is 10 business days from the date of refusal or proposal.

DRHD
[Modified by: DRHD on November 22, 2012 08:57 PM]

Requested PWN, in writing, and received it yesterday certified mail. The notice does not contain all of the info I requested, and leaves off the reading disability the school psychologist tagged. It is my understanding I can ask for revisions/corrections. Is my understanding correct? I know what PWN is suppose to contain, but while all areas are addressed on the standard form, it is very general. Thanks!

Thank you for the resonse, DRHD. My PWN request was made to the school psychologist (he has been the paper generator), and I CC: the district Director of Special Services. I copied her, because I thought the school psychologist was going to be on vacation, per previous discussion. Director called me and said PWN would be sent, as well as, she would like to have another meeting in light of an admended OT eval. The OT eval qualifying my son for consultative services is not contained in meeting minutes, PWN, or my son's recently obtained school records. I sensed she knew I was was frustrated with the process and was making efforts to put the 504 meeting on a faster track. She said PWN would be sent containing my requests. I was a little surprised it came certified mail w/ the director's letter stating this was the 2nd copy. She stated PWN was originally sent on the 9th (the day of our eligibility meeting). We did not receive the 1st PWN, hence my request. The PWN did not list my son's reading disability. It made no mention of RTI/RTI data (which we were told was mandatory), no reference to the RTI interventions my son received for approx. 10 days (that "data" was 90% of our eligibility discussion), did not list the school psychlogists classroom observation & comparative work samples obtained from similar ability children. It states the reason for denial is my son is on grade-level in all subject areas. I want to ask for clarification on the aforementioned & further justification. OSER has been clear in their commentary that grades/grade level do not disqualify a child from services, but that was the sole reason given. I'm not interested in fighting the decision, but I am very interested in making sure the record is accurate & the school is forced to justify their actions in writing. We can agree to disagree on special education services, valid arguments on both sides, but I do think we have valid procedural complaints. I'm OK with disagreements, but I feel uneasy with disagreements when the trust has been broken. Sorry to ramble like I usually do. Appreciate the response and support.
[Modified by: kellygh on December 06, 2012 01:55 PM]

Sorry for the confusion. LEA refused special education services in our last mtg on Nov. 9th. We had 2 mtgs prior to the 9th & one in spring of last school yr. At no time time did the school recommend, directly state, or imply RTI was mandatory. Eligibility was to be decided on 10/18/12. Consent had been signed on 9/12, and team agreed prong 1 was met on 9/12, with a severe discrepancy in writing & basic reading. School psychologist included basic reading while independent eval specified Dx of written expression only. In 10/18 mtg., school psychologist (SP) seemed floored, after sitting in mtg for 1.5 hrs, that my son had not been in RTI at any point. SP said RTI data was needed to determine eligibility, asst. principle piped in (also oversees RTI) & said RTI is mandatory. Tier 3 interventions w/ eligibility mtg on 12/9/12 according to team members (we expressed our disagreement). A 12/9/12 mtg would violate the 60 day clock. I contacted the director of special services regarding my concern about the process, and she agreed, RTI could not/would not supersede the 60 day clock. Mtg rescheduled for 11/9/12 to meet the 11/15 deadline. In the interim, my son had approx. 8-10 days of the "mandatory" RTI. The 10 days of data was, virtually, the only data/evidence discussed when eligibility was denied. Prior to 10/18, the school was calling asking for input regarding a draft IEP. Big shift. We did not receive PWN, sent or not, regarding the school's refusal to provide services. It is my understanding that PWN is warranted w/ an initial eval & services are refused. The PWN I received was said to be the 2nd copy the school sent. What I want clarified is the use of RTI data under the section referring to what assessments etc. were used to make decisions. RTI is glaringly absent despite delaying an eligibility decision & forming the basis of 90% of what was discussed during our eligibility meeting. No mention of classroom observations or comparative student work samples. I'm not asking for meeting minutes, but I would like the record to reflect a complete list of data/info used to form a decision. Other than the independent eval, everything else was dictated to us by the school, but they don't include all the "stuff" the team said was required. Why do they leave off what THEY insisted on having? The school lists the reason for refusing our IEP request as "on grade level in all areas." I'm not an attorney, and am new to this confusing IDEA stuff, but I am confident the spirit of IDEA is not commensurate with rejection soley based on being at (or above w/ 2x exceptionals) grade/age level ; furthermore, the RTI data used in the eligibility mtg lists intervention(s) as being: small group setting. Huh? Small group setting is not an intervention. The team said RTI data is mandated by law, but they were willing to overlook the 60 day clock law until I called them on it. I reminded my son's teacher the OT eval had not been completed 1 wk before our eligibility mtg. It was done 2 days before our mtg. My son did well with the exception of grip & another manipulative type activity. Not qualified; however, after the mtg, I spoke with the OT for a few minutes, and she said she was going to admend her report for consultative services. She said had she seen some of my son's work samples prior to the mtg, she would have had a different (ie: qualifying) report to present to the team. Maybe I'm just wrong in my understanding that PWN should reflect the basics. I feel like ours does not, especially when it does not even list the 2 SLD contained all over mtg minutes and data the school itself lists as being used to consider eligibility. Ugh! My brain smolders. Sorry for not being able to be brief/concise. Really appreciate the feedback! Apology for typos/grammar.
[Modified by: kellygh on December 06, 2012 09:55 PM]

We live in SC. I know that PWN is used in a variety of circumstances. In an ideal world/setting, RTI can serve as a terrific model for serving all students, but, IMO, it also comes with a lot of problems. That is another discussion, but in our case, it is the process. Last year, my son had a teacher with a lot of experience, and began working with us from the beginning. She was very open & willing to make accomodations and to provide extra help in & out of the classroom. By February, we knew we were going to seek outside testing. My son's teacher agreed that being on grade level/not failing = no intensive RTI interventions or testing. In the spring of last yr (son was in 1st grade), I turned over the independent eval & informed the school we would seek services. Met with the asst. principle 2x, and had a conference call w/ the school psychologist. At no time did anyone suggest we participate in RTI for the remainder of the school year or beginning this fall. Met with my son's 2nd grade teacher at the very beginning of the year. The asst. principle sat in on the conference. Had another meeting with the asst. principle (September) prior to our 1st team mtg. on 9/12/12. Had 9/12/12 mtg. Prong 1 was met, and we discussed what remains to complete the eval before eligibility. Eligibility mtg set for 10/18/12 & consent signed. Since spring '12 up to 10/18, there were meetings, phone calls, and written correspondence, and at no time did anyone ever mention, suggest, mandate, or ask about RTI. All of the sudden on the 10-18, it's mandatory, and the team is willing to violate the 60 day clock to get the 6 wks of data. When they were corrected on the time clock, they then proceeded to use 8-10 days of "data" to form the basis of an eligibility decision that had to be moved up by 3.5 wks. Most research I have read suggests 6-8 wks in a tier. I could be worng, but I do not understand or will ever agree that 2 wks of data (based on interventions described as small group) is good practice, ethical, or acceptable in the name of good RTI programs. Perhaps 6wks of data would have given my son the same results, but I am expressing frustration over the process. I perceive some team members, albeit very nice, as borderline incompetent. I have had to correct meeting minutes, call the state dept. of Ed or district to clarify/ensure the law is followed, and provide the remediation ourselves. I know my posts come across as angry and defensive. I am frustrated and let it out here rather than at school meetings.
[Modified by: kellygh on December 07, 2012 08:29 PM]

1)The Director of Special Services is much more on top of things and responsive even if we ultimately disagree. She will be at our nxt IEP mtg (I explain how we/why another IEP/eligibility team mtg below).
2)I requested a full eval, officially, on 9/12/12. The school was informed in spring '12 that my request was coming. When we were denied an IEP on 11/9, we said we would then push for a 504. That was encouraged by the school psychologist & included in the mtg minutes. I most defintely feel my son is eligible, but at this point, I am not counting on the school to do anything.
3)I believe my child's education is affected, but the school disagrees. I'm not really sure what performance means. Sounds silly, I know, but if grades and MAP scores are the measure, then I concede performace is not. The problem for us is I see what is not on paper. We are the ones providing hours of time to get homework done, provide strategies, get outside help bi-weekly from an educational psychologist, and see our child off to school sometimes crying or tantruming. We are the ones spending a lot of money & time paying for services outside of school. My son wakes up hating school (has since kindergarten) and comes home so relieved to be at home. I have to take deep breaths, pray, or drink a glass of wine before opening the homework folder, because I know the screaming and crying is coming. I have 2 other children who have a life and need attention too, and this LD stuff seems to just swallow us. I know I am speaking from emotion right now, and my feelings are not the point, but when I look at the objective data, I know my son is acheiving "because of..." not in spite of his LD if that makes sense? He is a people pleaser, and he would not dare act-up in school or show his emotions. When he comes home, he's exhausted from trying to tow the line.
4)The school met its time line for the evaluation process. It did so after I called the Director of Special Services. Had the school mentioned RTI last year, at the 1st meeting, then we would have gone along; however, they didn't. In fact, on 9/18, it was the team askng us how we would like to proceed. RTI, 504, or IEP. When we said IEP, not one team member discouraged us, said it might be a leap, or we flat will not qualify. Three days before the meeting on 10/18 (when we were originally suppose to determine eligibility), the SPED teacher was calling me asking for input on a draft IEP. Then on the 18th, RTI was all the sudden mandatory. If it's required, why did no one on the team EVER speak up before then? The team proposed eligibility on Dec. 9th, but the 60 day clock expired on 11/15. When I contacted the director, the meeting was rescheduled for 11/9. 90% of our eligibility discussion focused on RTI data gathered from 10/22 to 11/8. The assessments and focus of "intervention" hardly scratched the surface of where we feel like the real challenges are. SPED teacher would work on spelling (us too), son would get 100, and that's all the school cares about. It doesn't matter that he can turn his paper over to write a sentence & then mispell most all of the words or mispell 50% or more of the words, spelling test format, less than 24 hrs later. That's just one of many examples. If there is no retention or carry-over into other skills/exercises, I do not consider that mastery. All the school cares about is what happens on that test.
5-e)PWN does not mention RTI as part of the evaluation process/data used, but it has been a major source of drama & discussion in the eligibility meeting. PWN does not list the reading disability. Maybe because we sought services for writing only? PWN gives the reason for denial only as: "Child is performing on grade level in all areas." I want more specificity, because everything I have read (albeit I could be interpreting wrong)on wrightslaw, ed.gov, websites such as this, Lillie letter etc. states that good grades, passing etc. do not in-and-of themselves disqualify a child from services. What happens to gifted children with an LD that IDEA commentary states are covered? My son is not gifted but does well/well-enough, with a lot of support, that I am 100% confident RTI would have never identified him. Various other sources say it's also appropriate to consider how much help a child is getting when looking at data.I have been telling the school since Kindergarten that he will fall through the cracks, silently, without advocating for him. It's not normal for a 6 yr old to scream,cry, and sob due to writing homework and then tell you he wants to die. It breaks my heart!
When eligibility was denied, we stated we would pursue the 504. Some of us continued talking as the meeting was concluding, the asst. principle left the room, and came back with a meeting time on 12/12. I thought it was for 504, because we had been told it was a separate process/different team. The school psychologist (our advocate was there) specifically said "there is plenty of data to move forward with the 504 process." 5 days after the eligibility meeting, I received an admended OT eval sent home in my son's folder. Qualifying for consulting services (better than nothing, eh?), so I sent a letter to the asst. principle requesting the OT's presence at our 504 meeting on the 12th. He calls to tell me the meeting on the 12th is for an RTI update not 504. The 504 process must start with me making a request to the guidance counselor. Say what?! Why didn't someone spell this out in the meeting? Why did the date & time on my paper not say RTI meeting? So another week gone and more hoops to jump through. The guidance counselor sends home a form that begins with "Please describe the concerns you have about your child." After all this, and now we are back to the proverbial "What's the problem." unreal. I was very frustrated. Filled it out. Guidance calls back and said she received the form, we will schedule a meeting to see what data the team needs esp. as it relates to processing speed, and then convene in January to determine eligibility. All I could do was cry when I got off the phone. We were told there is plenty of data, and it's like we are starting all over again. I told the guidance counselore we won't consent to more data. My poor son has been pulled out of class so many times, met a lot of strange faces on the fly & asked to perform, and I will not put him through any more. This is absurd. When I requested PWN & mentioned the admended OT eval, the Director of Special Services called and said the IEP/eligibility team needs to reconvene to discuss the new "data" & why the eval was changed. She said she called the guidance counselor & told her to call me, get a relase signed, so the 504 mtg could move fwd on the same date as the IEP mtg. So...for the 2nd or 3rd time, the 504 plan of action has chnged. My husband can not take off work 2x that week; therefore, I was told the RTI mtg (on the 12th) could go fwd without us. I don't like that. I want to be there, but it requires me to find childcare 2x in one week as well. Then guidance calls again, wants to meet with me Monday, to discuss what we want out of a 504 & how the school can help even if my son doesn't get a 504. She even asked me if I had tried turning off the TV during homework time. Can you believe it? I really thought my head might explode! I'm exhausted. The reason I did not go through the school to get an eval was, because I thought it would be drawn out if they even agreed. Yet here we are, 1/2 the school year almost gone, and we have nothing. Still have no idea what is being done in TIER 2 RTI. Nobody can really articulate how the curriculum is individualized to my son's issues. Why? It's not. One of the main problems I have with RTI is there is no accountability. It's the fox guarding the hen house. Parents have no input other than sitting through meetings with progress updates. Anyway, they are probably going to kick me off this forum for taking up way too much space! Thank you, DRHD, for your help & suggestions. I hope I didn't get too off topic & answered/clarified your questions. Blessings. Sorry for typos
[Modified by: kellygh on December 08, 2012 05:06 PM]

Kellygh,

Just checking with you to understand the progress you have been making with your son and with the school and/orschool division.

DRHD

Kellygh,

Thank you for your message. I am pleased you had your meeting and feel more confident that something substantive will be taking place soon.

Theoretically, and statutorily, the threshold to identify a child under Section 504 as compared to an IDEA criteria are quite different. School divisions will most always apply an inconsistent standard when a 504 identification is at issue. Nontheless, if you feel comfortable at this juncture then that is what is important.

The criteria for a 504 identification does not consider the adverse effects of a child's performance. The threshold to identify a child with a 504 disability is whether there is a "substantial limitation to a major life activity, this case learning". The term "substantial" is not to be interpreted as just "adverse" but substantial moves the threshold to a greater level of severity. This is where parents and school districts, more often than within acceptable limits, view the identification of 504 to be "relatively easier" than to identify under IDEA. This thinking or conclusion by school personnel is simply faulty at best.

The 504 statute and the ADA statute do not define the term "substantial" and therefore it is left to the opinions of those who are deliberating the eligibility decision to decide. One myth I have concluded associated with IDEA eligibility is that if a child does not meet the threshold criteria of "adverse effects on performance" under IDEA, how then can one conclude that the child should and likely can be identified under 504 where the threshold is "a substantial limitation"? So again, as I have stated earlier, you know the data and have been a part of the discussions: are there adverse effects upon performance or are there substantial limitations to a major life activity such as learning.?

I share this with you as I feel that you need to understand these differences as you proceed into this process. All things said, I do hope you are successful and the outcome will serve to benefit your son.

DRHD

[Modified by: DRHD on December 11, 2012 12:41 PM]

Kellygh,

I am familiar with the OCR Q&A as I have used this in the class I teach, Legal Aspects of Special Education to doctoral students. This particular Q&A does answer questions about the issue of the definition "substantially limits" but in he final analysis is not prescriptive.

Usually a 504 discussion at the school and division level will address the transient nature of a child's issue and the ameliorative effects of interventions and still not consider the significance of the impact of the substantial elements of a disability upon academic performance to require 504 interventions. This is where the true issue resides.

What has to be demonstrated in my opinion, is the relationship to your son's inability to achieve to his level of potential in learning as a result of a substantial limitation that impacts upon this. The uphill issue that exists here is the fact that as I understand from all that has been described is that your son is achieving academic success and is able to access his academic pursuits with a minimal but not necessarily a substantial level of limitation.

Please note I'm playing a "devil's advocate" here and only trying to prepare you for the discussion. So how will you "counter" the otherwise obvious arguments that "access" and "equal participation" are not the issues that should cause him to meet the threshold of eligibility for 504 services?

Again, pleas undestand I'm supporting your efforts.

DRHD
[Modified by: DRHD on December 11, 2012 02:35 PM]

Kellygh,

You've come a long way from what you thought you understood in the beginning of this process. You have done well and I envision success on the horizon. Schools and school districts 'struggle" with 504 issues and I can understand why this is the case. 504 issues are like nailing jello to a tree at times. All I have done or attempted to do is to enable you to be somewhat more prepared for the discussion.

I will encourage you once again to notify the Director that you desire to tape record the discussion to have a verbatim record. Just make certain it is timely.

DRHD