The IDEA Guarantee of Prior Written Notice: When the Only Response You Receive Is “NO”

After I sent a request for assessment letter to the school district I was told by the Principal that they weren’t going to evaluate. She didn’t offer any reason “why” they had reached this decision. What do I do now?

Don’t Take An Unqualified “NO”

The school district cannot simply say “no” without articulating the reasoning behind their decision.  As a parent, I wouldn’t even attempt offering such an unqualified response to a reasonable request made by my second-grader without expecting to be challenged. However, parents are often befuddled by a teacher or principal saying “no” and give these sometimes flippant responses too much weight. You have a right to a reasonable response.

The Individuals with Disabilities Education Act (IDEA) provides a procedural safeguard that guarantees a written response to your request. The school district must inform you about proposed evaluations of your child in a written notice or an assessment plan within fifteen (15) calendar days of your written request for evaluation.  This prior written notice (PWN) requirement includes instances where the parent initiates the proposal that evaluations be conducted. Therefore, parents that are told “no” after having requested that their children be evaluated for special education services have a right granted under the IDEA to be given a reasoned response to their request.

The ABCs of Prior Written Notice

Prior Written Notice (PWN) must be given to parents when the school district

“proposes to initiate or change” or

refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child.”

The school district’s PWN must contain the following:

  • A description of the action proposed or refused by the agency
  • 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 action or refused action
  • A statement that the parents of a child with a disability have protection under procedural safeguards
  • Sources of advocacy assistance for parents
  • A description of other options considered by the IEP Team and the reason why those options were rejected, and
  • A description of the factors that are relevant to the agency’s proposal or refusal

The United States Department of Education has provided a Prior Written Notice model form for school districts.

Your Response to No Response

Do not wait for three months for a written response from the school district. If the school district does not provide you with a written explanation within 15 days that conforms with the above requirements it is necessary that you take the initiative in requesting a written explanation.

When writing your request for an explanation, reiterate the concerns that you raised in your initial assessment request letter. Request that the school district provide you with a written account articulating the assessments, records, observations, reports and other factors that the agency used as a basis for the proposed action or refused action. Also, ask the district to discuss other options that they may have considered and reasons that they rejected those other options.

It is imperative that you be courteous in all correspondence with the school district. You want to maintain a professional relationship and at some point, your correspondence may be read by a hearing officer. Your goal in writing the letter should be to receive an honest answer as to “why” the school district has decided not to evaluate and the methods that they employed in making this determination.

To Cite Or Not To Cite

It is not necessary or even beneficial to cite the PWN statute in your initial request for a response letter. As suggested by the invaluable advocacy site Wrightslaw, a letter that “tracks” the PWN statute may be more effective. Wrightslaw provides a very good model for such a letter.

 

Compliance Complaint

Failure to provide prior written notice can be the basis for a Compliance Complaint. Prior Written Notice is a procedural safeguard guaranteed under the IDEA. Compliance Complaints must be filed within one year of alleged non-compliance. These complaints are made through the California Department of Education and information regarding filing such a complaint can be found on their website.

While anyone can file a complaint I would strongly suggest consulting with a special education attorney before pursuing this course of action.

This article is the property of The Law Office of Janina Botchis and may not be re-published without the express written consent of The Law Office of Janina Botchis. If you have questions regarding the content of this article or are in need of representation, contact jdbotchis@speakforyourchild.org.

Advertisements

One response to “The IDEA Guarantee of Prior Written Notice: When the Only Response You Receive Is “NO”

  1. Pingback: “What’s A Wechsler?”: Understanding Your Child’s Proposed Assessment Plan « Special Needs Rights·

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s