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Throwing the Flag - What to Do When the School Says "No"
by Pete Wright, Esq.
When Schools Fail to Provide Prior Written Notice (PWN)
At a recent Wrightslaw Boot Camp, we reviewed the Procedural Safeguards in the IDEA, including the Prior Written Notice (PWN) protections .
A parent had a question. She said she did not agree with the school's proposed IEP, the school refused to change the IEP, so she needed to file for due process. Her advocate advised that she could not file for due process until after the school provided Prior Written Notice (PWN).
The parent and her advocate wrote several letters to the school to request PWN. The school did not respond.
Three months passed before the parent requested a due process hearing.
The parent believed that the school had blocked her requested for a due process hearing. She was angry and frustrated. After we discussed the Prior Written Notice and the Due Process Hearing Notice statutes (IDEA at 1415(b)(3) and 1415(c); see pages 108-110 in Wrightslaw: Special Education Law), the parent said "I think my advocate was wrong."
She was right. She could have requested the due process hearing when the dispute arose, without waiting months for the school to respond.
Power of the Person Who Holds the Pen
I explained that the person with power is the person who holds the pen (who writes letters and drafts papers). Instead of waiting for the school to respond to her concerns and objections, this was an opportunity for the parent to write her own Prior Written Notice letter, incorporating the elements of the PWN statute ...
1. Content of Prior Written Notice
(A) a description of the action proposed or refused by the agency;
(B) an explanation of why the agency proposes or refuses to take the action and a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
(C) a statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;
(D) sources for parents to contact to obtain assistance in understanding the provisions of this part;
(E) a description of other options considered by the IEP Team and the reason why those options were rejected; and
(F) a description of the factors that are relevant to the agency’s proposal or refusal.
(20 U.S.C. 1415(c)(1)) (see page 109 in Wrightslaw: Special Education Law)
Sample Prior Written Notice Letter
In most cases, I suggest that parents not refer to the PWN statute in their letter. Instead, they should write a letter that tracks the PWN statute -- like this:
Dear Dr. Smith:
We appreciate the IEP team meeting with us on March 15. I want to clarify my understanding of what we agreed to, and the areas where we did not reach agreement.
We requested that the IEP Team increase our child's speech language therapy from one 15 minute session of group speech therapy a week to three 45 minute sessions of one-to-one speech therapy a week,
We base this request on the two speech language evaluations. The first evaluation was by Dr. X (dated xxx). The second speech language evaluation was conducted by Dr. Y (dated xxx)I have attached both evaluations to this letter.
We provided seven copies of these evaluations to the IEP Team 5 days before the meeting so the team members would have time to review the findings and recommendations.
However, during the meeting, IEP Team discussed their belief that my child does not need 15 minutes of group speech therapy a week. The team discussed discontinuing all speech therapy altogether. I'm sure you understand that we were very distressed.
At the end of the meeting, the IEP Team decided to continue providing 15 minutes of group speech language therapy. The team ignored and rejected all recommendations made by Dr. X and Dr. Y.
If my understanding of what the team agreed to provide is incorrect, please let me know.
The IEP Team said they made this decision based on one classroom observation of my child on the day before the IEP meeting by Dr. Jackson, Central Office Director of Speech Language Services. The team did not rely on any new evaluations, assessments, records, or reports, although they had the two evaluations that I provided before the IEP meeting.
Other than our request to increase speech therapy to three 45 minute sessions a week, the only option that the Team considered and subsequently rejected was to completely discontinue speech language therapy.
If the Team considered and rejected other options, or other factors affected their decision, I am not aware of them.
Other factors, unknown to me, may have caused the IEP Team to reject our request for an increase in speech language services. If I missed other options the IEP Team considered and rejected, please let me know these options and why the Team rejected them.
If you do not advise me to the contrary, I will assume that the Team did not consider other options or factors. After ignoring and rejecting the recommendations in the two new evaluations that I provided, the only new information considered was the 20 minute observation by Dr. Jackson.
Again, if I am mistaken or made erroneous assumptions or conclusions, please let me know.
Hand delivered on March 20, 2011 to the office of the Principal, Falling Creek Middle School
Our advocacy book, Wrightslaw: From Emotions to Advocacy, includes 16 sample letters. Several of these letters can be modified into a Prior Written Notice letter by using your facts.
Critical Evidence Letters
We advise parents not to send key evidence letters by certified or registered mail. Hand-deliver these letters to the school. We describe why and how to do this on on pages 229 and 246 of Wrightslaw: From Emotions to Advocacy.
I always have my parents write and deliver their letters. Letters written by a parent are more persuasive and carry greater weight than letters from an attorney or advocate. I have my parents write the first draft of their letter. I will review the letter and make suggestions about information to include and rephrase.
Tip: After you write the first draft of an important letter, put it away for 24 hours. When you re-read it you will view your letter more objectively.
Tip: Ask a friend to read your letter. After reading the letter, ask your friend to answer these questions:
If your friend cannot answer these questions, you need to revise your letter before delivering it to the school.