Prior Written Notice Requirements for Denying Parent Requests in Special Education Matters

Photo credit: Mary Cullen, instructionalsolutions.com

Prior Written Notice (PWN) pursuant to 34 CFR Sec. 300.503 gets a fair amount of general discussion among special education stake-holders, but, in today’s post/podcast, I want to look at it more in-depth. Today’s discussion looks more closely at the regulatory requirements and the types of special education contexts in which PWN becomes necessary.

I pulled a couple of examples from old case files that I can use to illustrate a number of points. These are old, closed cases from school districts where I currently have no active casework that happened years ago, but one of them involves bad players that I know are still out there.

The first one involved a student of an independent study charter school that had contracted with a third-party provider to deliver its special education and related services. Charter schools are often the worst at special education compliance, and online and independent study charters are usually the worst of the worst; for more information about that, see our prior post, “California Charter Schools & Special Education.” This case was no exception.

To put this example PWN into context, first I have to explain what was going on at the time. Our autistic student with high cognition also had debilitating anxiety that, combined with his autistic perseverative thoughts, could spiral his behaviors out of control, requiring intensive Board Certified Behavior Analyst (BCBA) services.

This student also needed interventions to address his anxiety, for which the parents, through me as their advocate from our agency, had requested a referral for a mental health evaluation as part of the IEP process. At the time, what we were requesting was provided by the local County Behavioral Health (CBH) agency under contract with the local Special Education Local Plan Area (SELPA), of which the chartering school district was a member.

So, while we were requesting a referral to the local CBH, it was under the auspices of an IEP-related assessment for the determination of IEP goals and services. In response, the third party special education contractor, using the local SELPA’s PWN form, replied with the following:

  1. Description of action proposed or refused by district: In a letter dated [DATE] and received by the charter on [DATE] the parents requested the school refer [STUDENT] to [CBH]
  2. Explanation of reason for proposal or refusal: Parents can make individual referrals themselves without the involvement of the school.

The PWN goes on to explain how parents can make their own community-based referral outside of the IEP process to the local CBH. In an effort to try and make it look like it was complying with the law by replying with official forms and filling in the blanks with words, what the charter’s third-party contractor actually did was commit a substantive violation of a Free and Appropriate Public Education (FAPE).

First of all, the request was for an IEP-related mental health evaluation and possible IEP goals and services. Going through the community-based referral process does not tie any mental health services provided to IEP goals and the delivery of a FAPE. Regardless of what our student may have or have not received by way of community-based mental health supports, none of that alleviated the IEP team from the mandated responsibilities of assessing for and providing any needed special education-related mental health services.

Further, the charter’s response on official SELPA forms was issued by its third-party contractor, which had no direct legal obligation to our student to offer and deliver a FAPE. The third-party contractor issued PWN on behalf of the charter, which was supposed to be acting on behalf of its chartering district, the latter of which being the entity that was actually legally responsible for FAPE but had no idea any of this was going on.

What this was really about was the charter’s third-party contractor not wanting any other entities involved over which it couldn’t exercise any kind of control. Because CBH would have been directly funded by SELPA and the State, the charter’s third-party special education contractor couldn’t lord payment over its head to control how it conducted itself like it did with its contracted teaching personnel and service providers.

If anything, it put the third-party contractor’s questionable conduct in the path of scrutiny to have an outside agency like the local CBH get involved. The third-party contractor denied the referral and pushed it back onto the parents in order to prevent CBH from becoming part of this student’s IEP and implementation teams. It was out of fear of accountability that the third-party contractor denied the referral and pushed it back onto the parents to pursue through community-based resources outside of the IEP process.

Measurable annual mental health IEP goals with the local CBH as the responsible provider would have likely meant CBH personnel in the home, where additional special education services of all kinds were needed but not being provided. Having CBH come on board to provide mental health services under this student’s IEP would have created outside, impartial witnesses to all of the other special education violations going on with this student’s case at the hands of the charter’s third-party contractor.

Adding CBH to this student’s IEP would have made the chartering district answerable for making sure the mental health goals were implemented as written, which would have required CBH to actually do its job, putting the third-party contractor’s scam operation at risk of exposure. Needless to say, this case ultimately went to a lawyer who filed for due process, the matter settled, and I can’t talk about what happened after that.

Prior to and at the time of settlement, this kid was in no way ready to enter the brick-and-mortar school setting, which is far less restrictive than being educated at home. This was one of those situations where the independent studies charter school kept insisting that the student’s living room was the general education setting because that’s how it was for all of their students, without regard for the fact that the only reason his living room was the Least Restrictive Environment (LRE) for him was because he couldn’t handle a traditional classroom.

If this student had been enrolled in a traditional school district at the time, but still was receiving instruction at home, it would have been regarded as one of the most restrictive placement options possible. His in-home placement was light years from a general education classroom in a brick-and-mortar setting, which everybody knew he couldn’t handle. It was a technicality that in-home instruction was the norm for independent studies charters, such as his. His situation wasn’t about family educational choice; it was about individual educational need.

Educating him at home was an accommodation. His parents would have preferred to send him to school, in all honesty, but they made the choice to home-school because of his demanding special needs. He needed intensive autism and mental health services to get to the point where he was able to access the world outside his home with success.

The charter was effectively trying to turn him into a well-educated hermit, which often seems to be the case with students with these types of needs in independent study programs. Bringing the instruction to students who are challenged to function successfully outside of the home may seem to be prudent, but if it doesn’t include related services meant to increase the student’s independence and access to less restrictive learning environments, it’s not a FAPE.

Preventing the provision of such services in order to avoid accountability is a despicable breach of ethics, as well as a monstrous denial of FAPE. First, in this case, the denial to refer for IEP-related mental health services as requested by the parents interfered with meaningful parent participation in the IEP process, in addition to violating procedure with respect to referrals for evaluations and reevaluations.

Secondly, it denied a FAPE because it meant the student’s IEP was informed by insufficient assessment data. As a matter of FAPE, the student had a federally protected right to assessment in all areas of suspected disability and learning need. That right was denied when the charter’s contractor chose to deny the mental health assessment referral and push the burden back onto the parents to pursue through community-based resources unrelated to the IEP process.

Further, the contractor’s efforts to circumvent the IEP process not only undermined meaningful parent participation in the IEP process as promised by federal law, it also meant that the student’s IEP was not reasonably calculated to render meaningful educational benefits in all areas of unique student need, which also denied a FAPE. As such, the student was being deprived of meaningful educational benefits in the areas of mental and emotional health, which was negatively impacting his behavior and, thus, access to education, which also denied a FAPE.

So, just on the basis of this misuse of an official PWN form, the charter’s third-party contractor made the record of its efforts to circumvent the IEP process, indirectly on behalf of its charter school client’s chartering district, thereby denying a FAPE in at least four different ways:

  1. Denial of meaningful parent participation in the IEP process
  2. Failure to assess in all areas of suspected disability
  3. Failure to design IEPs that are reasonably calculated to render meaningful educational benefits in all areas of unique student need
  4. Failure to deliver meaningful educational benefits in all areas of unique student need

The point I want to get across is that, just because you get a PWN on official paperwork, it doesn’t mean the education agency has actually followed the law. It’s not just the matter of complying with procedure by sending something out titled “Prior Written Notice.” What is written in the notice matters, and is regulated by federal law.

In my second example, also from years ago, and also ultimately settled after the family brought in an attorney, the situation was different. Our student had lived with his parents in the attendance area of a school district near the Southern border of California. Shortly before I became involved, this child’s mother had passed away, leaving his father alone to provide all of the in-home support his autistic son with demanding needs required while holding down a job as a traveling engineer.

As difficult as it was, the most sensible thing to do under the circumstances was for the student to live most of the week with his grandmother in another community far to the north in the San Joaquin Valley. The student’s grandmother, his late mother’s mother, was available to be a full-time primary caregiver and his uncle, his late mother’s brother, was available to help with any kind of important decision-making, such as with IEPs and regional center services. The student’s father shared his educational decision-making authority with his mother-in-law and brother-in-law so that they could take on these serious responsibilities.

In anticipation of the student moving to his grandmother’s and becoming a student of the local school district, his uncle went to enroll him and shared with the District the student’s IEP. The IEP from his incoming school district included a significant amount of Non-Public Agency (NPA) services that were provided during and outside of the school day because of the intensity of the student’s needs.

These services were not typical for most IEPs, but IEPs are supposed to be individualized. Based on the evidence it had at the time, the IEP team at his previous school district had determined that these services were necessary based on his unique circumstances to provide him with a FAPE.

The receiving school district nearly had a fit when it saw this student’s incoming IEP. It utilized every procedural tactic at its disposal to argue that it didn’t have to implement the incoming IEP as written. That’s one of the issues that was addressed by the settlement, so I can’t talk about it, here, which is a bummer because the legal arguments around this issue were total fireworks.

The bigger point that almost got lost over the arguments over procedure, which was likely the District’s intent by arguing over procedure, was what the student substantively required as a matter of FAPE. The receiving school district simply had no intention of paying for NPA services and insisted on stripping out all of the individualized supports described by the student’s IEP, which had him placed in a general education setting with age-typical language and behavior models, and placing him in a Special Day Class (SDC) for students with autism.

This student was mainstreamed with a 1:1 NPA behavior aide to keep him involved in the instruction and facilitate his language, social, and classroom behavior skills development. The receiving school district proposed to put him in a full-time classroom filled with other students with needs like his own and no models of age-typical language and behavior. He was being successful in his previous placement with the configuration of services described by his IEP.

The receiving school district had never met the student, much less assessed him, and therefore had no educational or legal basis to place him in a more restrictive setting. Regardless of whether procedure required the receiving school district to implement the incoming IEP as written or not, it was still obligated to offer and provide a substantively appropriate FAPE. It had no data to inform its offer of services and placement, and certainly nothing that suggested his needs had changed such that a more restrictive placement was educationally necessary.

After articulating the request for the receiving school district to implement the incoming IEP as written, this was the District’s response, crafted with the assistance of its attorney, as I understand it:

Description of the Action Proposed or Refused by the District

The [District] and [County Office of Education (COE)] are refusing to provide BCBA supervision of the BIP dated [Date]. The District and [COE] are denying the request for 1:1 instructional aide support to be provided by a NPA. The District and [COE] are also denying in home support, parent training, and direct speech and language services provided in the home. The District and [COE] continue to offer a [COE] operated special day classroom located at [Campus] as an interim placement for 30 days

Explanation Why the District Proposes or Refuses to Take Action

… you requested that [Student] be provided with a BCBA to oversee the BIP. The District and [COE] offered 60 minutes per month of consult behavior intervention services to address the implementation and training of the BIP … to be provided by a [COE] program specialist with … required training for Functional Behavioral Assessments (FBA) and BIP … the District and [COE] feel that the program specialist would be able to implement the strategies and recommendations of the BIP.

… you requested that a NPA provide the direct 1:1 instructional aide services. At the meetings, you indicated that the NPA instructional aide is essential to the successful implementation of the current IEP. The District and [COE] recommend intensive individualized services daily … Intensive individualized services are provided by [COE] instructional aides … The District and [COE] feel that [COE’s] trainings, in addition to the support and oversight provided by the program specialist, provide enough knowledge for [COE] to successfully support [Student] and fully implement the current IEP.

The District and [COE] are refusing to provide these additional services and continue to recommend 360 minutes per month of direct speech and language services and 30 minutes per month of consult speech and language services. Given that the in home services that are being requested are now embedded in the categorical program in a way that his prior placement in a non-categorical program did not provide, in home services are not needed.

So, that’s a lot, but here again is an example of a school district complying with procedure by sending a PWN, but, in doing so, making the record regarding its substantive denials of a FAPE. As stated previously, the receiving school district had conducted absolutely no assessments that indicated that this student needed to be placed in an SDC instead of supported in general education with push-in supports. This was an LRE case.

Basically, what the receiving school district was doing was making a placement decision on the basis of what it was willing to spend rather than what was necessary to educate the student in the LRE. The only guidance it had as to what the student required was the incoming IEP. It had no idea whether what it was offering as a 30-day interim placement would completely derail this kid or not (which it would have).

The language that jumped out at me that really chapped my hide were the statements about what “the District and [COE] feel” is best in the absence of any evidence. Basically, this was the District and COE admitting to basing their decisions on opinions rather than the facts that the regulations require.

It’s a violation of both the IDEA and Section 504 of the Rehabilitation Act to to change the type of placement a student with disabilities receives without first assessing to determine that student’s current placement needs. Placement decisions are based on what is the LRE in which the services can be rendered such that the goals are met. There was no data demonstrating that an SDC placement was suddenly the LRE for our student, after he had been successfully placed in general education with push-in supports under the IEP he already had.

Like I said, this case was ultimately settled and it happened several years ago. But, these kinds of things continue to go on all the time. I’m only citing old cases, here, because I don’t want to talk about anything currently being litigated or potentially litigated. The regulations for PWN have been the same for a long, long time, so there’s not some recent change in the law that would make older cases irrelevant.

As a parent, if you get a PWN in the mail denying a request you’ve made, don’t assume that the explanation you’re being given is a good one. Just because it’s on official letterhead or official form doesn’t automatically make it proper.

Really, it all boils down to 34 CFR Sec. 300.503(b)(2), which requires any PWN to include, “An explanation of why the agency proposes or refuses to take the action.” The explanation as to why a parent request is being denied better be a good one, or all the District accomplishes is using a procedural requirement to document its substantive denials of a FAPE on the record. If that’s the case, it’s evidence that parents can use in due process to achieve appropriate educational outcomes for their children with special needs.

Anne M. Zachry, M.A. Ed. Psych. on Linkedin
Anne M. Zachry, M.A. Ed. Psych.
Anne M. Zachry, M.A. Ed. Psych.
Anne has been a special education and disability resource lay advocate since 1991, a paralegal to attorneys working in special education and disability rights law since 2005, and an educational psychologist, behavior analyst, and curriculum developer since 2013.

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