Prior Written Notice

Last week I wrote about how I ran into a woman that taught the emotional disability kiddos at our local middle school in a self-contained classroom. Which confused me at the time because our district had sent Travis to two different out of district settings because they did not have an appropriate setting for him.

And I was confused because at the time the special education director had told us that he didn’t believe in self-contained classrooms. But then he was good with sending our boy out of district for two and a half years at a setting with self-contained classrooms.

And we were told that Travis was the only kiddo in the district that needed that level of support. If they have a small classroom at the middle school that means there were other kids in the district while Travis was in elementary school with his level of needs. That had been feeding into the middle school program while he was attending school in another district.

Had I not run into the teacher, I do not believe that I would have been made aware that a self-contained classroom existed at the middle school level. Even as we were desperately trying to get our child back to going to school in our district.

I also wrote last week that I was surprised that the special education director agreed to give Travis a try in this setting if his current out of district placement thought he was ready and this teacher was willing to give it a try. According to my notes this took place in January of Travis’s fifth grade year.

So based on his reply we told Travis that he would be able to start school in his district the beginning of the next school year.

In May the executive director at the center Travis was currently attending school wrote a letter to our district. In her letter she states,

“We believe that Travis would be most successful in a self-contained classroom setting to begin the 2005-2006 school year. We also believe that remaining in the program provided by our center would be of little benefit to Travis. He is placed in a program that is designed for primary students. While this program suited him upon his arrival, he has reached his full potential within the program. Travis needs the opportunity to socialize with peers of his own chronological age and developmental level. Travis deserves the opportunity to be included in a more age appropriate and developmental appropriate setting.”

(Remember, the children that Travis attended school with had emotional issues based on the trauma in their lives. But they were on grade level and did not have a learning disability. And when this center accepted Travis they did not know that he had a learning disability. They found out when they completed his cognitive functioning testing.)

“In order for Travis to make a smooth transition, we believe he needs to experience an Extended School Year (ESY) program in which he has the opportunity to adjust to his environment for fall.”

The executive director brought this letter with her to our district when she attended Travis’s IEP meeting in May. During this meeting it was decided that Travis would receive ESY services in his home district to help determine if he is ready to attend the self-contained program at the middle school.

I was very pleased to be moving in the right direction towards getting back to our home district, even though I was nervous. I felt like this four week summer school was like he was trying out for a team. And if he made the team he could come back to school in his town. And I was nervous because change was difficult for him. I wasn’t sure if he would make the team.

But then I remembered the local teacher telling me the special education director was open to giving Travis a shot if she was and his current placement recommended it. Which they did.

So imagine my surprise when I received a letter a week later from the special education director. At the top of the letter typed in all capitals, PRIOR WRITTEN NOTICE. It sounded like something legal. After some research it turns out it was. And I believe meant to be intimidating.

In his letter he says that the IEP members agreed that Travis will receive ESY from July 11 - August 5, 2005. His letter also says,

“It was further agreed that consideration for Travis to attend our local middle school would be based largely on how well Travis functioned, behaviorally, socially and academically within the ESY program. Members of the IEP team feel that a fair criteria to help determine readiness will be set at an 80% success rate. That is, at the end of Travis’s summer program, he must average at least an 80% success rate on all goals before he will be considered for special education placement at our local middle school. Although it will be a major consideration, Travis’s IEP team mentioned that his special education placement this fall will not be based solely on his ESY performance.”

Are you hearing what I’m hearing? Reading between the lines tells me that they do not intend to bring him back. First he is saying that to be considered would be largely based on how Travis functioned, with the criteria set at 80% success rate on all of his goals at ESY. Which is quite a high bar to set, and one that I do not believe all of the other children in the district on an IEP are meeting.

But then he goes on to say that although reaching 80% success rate will be a major consideration, his special education placement will not be solely based on his ESY performance. In other words, if by chance he does meet the goals we still can say no to him coming home, we will come up with a reason. (My thought process is based on experience.)

He says that his letter is to describe an agreement made at the IEP meeting, (and later in a phone conversation you and I had).

This letter was some kind of attempt the special education director was writing to in some way cover his butt. First off, Tracy and I were present at the IEP meeting and there was never a discussion about any kind of success rate requirement for Travis to attend his local middle school.

And to say that I agreed to it in a phone call was a flat out lie. And anyone that knew us back then knew that we would never agree to Travis having to achieve an 80% goal success rate in order to come back to district.

When I shared this letter with the executive director of Travis’s current placement she agreed that an 80% success rate was never discussed. She was also in attendance at this meeting. She contacted the special education director and told him that it was never discussed. He told her that there was another IEP meeting, a follow up meeting. She shared that it was against the rules to have a meeting without notifying the parents so they could be in attendance. He said that I did attend.

Another flat out lie. And an easy one to prove. This would come back to bite him in the butt later.

Excerpts from my letter in response,

“This letter is in response to your letter dated May 20, 2005. You and I did have a phone conversation. During this conversation we discussed two options available for Travis’s ESY services.

The first option you described was a program at the middle school for non ESY students with a substitute teacher with no special education training. You thought this might be a good option because it was at the middle school Travis would be attending this fall.

The second option you described was a program at a local elementary school where the other fifth grade ESY students would be attending with a teacher with special education training.

I chose that option as the obvious best choice. That is all we discussed. Your letter makes it sound like we discussed everything in your letter and that I agreed that Travis must obtain an 80% success rate during his ESY services to attend our local middle school this fall.

That is absurd.

Number one, we did not discuss or agree to this.

And number two, an 80% success rate is ridiculous. I think we have made it known all along that 80% is a benchmark that would be difficult for any special education student to obtain. I would also argue that you have regular education students in the district that do not meet an 80% success rate behaviorally, socially and academically.

We believe that you are knowingly setting up our child to fail, because you know that he does not handle changes in routine well, thus he will probably struggle in the beginning with this change in placement.

You state that the members of the IEP team feel that this is a fair criteria. We did not discuss this at the IEP meeting. My husband an I are members of the IEP team and we do not agree to these terms.

When we left that IEP meeting, we got the impression that your attitude was what is the plan when Travis blows out of summer school, not if he should blow out.

You also made a joke during the meeting about your not being sure there is a program out there to meet Travis’s needs. I assure you that the best education for our son is not a laughing matter to us. Any person who works in the education field should be very mindful of the feelings of others around comments such as this one.

Your letter also states that Travis’s placement this fall will not be solely based on he ESY performance. In other words, he could have a great ESY experience and you may still not consider him for placement at the middle school.

We believe that our son can be included in his neighborhood school with an one-on-one aide. We also believe that this can be done for much less money than is being spent sending him to day treatment programs.

The district does offer one-on-one attention for other children with special needs. You even made the comment to the center staff that you wanted to send a district aide to work with Travis at the center. You stated that you knew she would work well with Travis because she was working in district one-on-one with a child with much higher needs. So one-on-one is offered for some students. We believe that our son is being discriminated against.

We refuse to give up on this district. We made our home here because we heard wonderful things about this district. This district has served our regular education student well, and we have served this district well. This district has done a disservice to our special needs child. Our child deserves to go to his neighborhood school in the least restrictive setting.

It is because we believe strongly that this district should offer all children a fair and appropriate education that we are giving you PRIOR WRITTEN NOTICE that we would like to initiate a due process hearing. Please send us the forms we need to complete as soon as possible. (A prior written notice is a notice that districts send to parents. But it did feel good saying those words back in my response!)

You do not give any weight to our thoughts on this and we no longer have faith in your process. All we were asking for is this district to give him a chance, but by setting a benchmark of an 80% success rate, we realize that this district just does not want to put forth the effort to give our child the education he deserves.

In the meantime, Travis will be attending summer school.”

To be continued…..

“Children with disabilities education falls far short of what federal law requires or even what common sense dictates. I still think they (school districts) are lazy in general and they will continue to try to play the odds that they won’t get sued.” - Kitty Cone, Special Education Lawyer