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]

Thank you for the response, DRHD. I will give it 10 business days.

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!

Kellygh,

Thank you for letting me know that you have received the PWN. It is not surprising to understand that something may have been overlooked in the writing of a PWN. This can be an unintentional error. During the deliberations of an IEP meeting it becomes a challenge to ensure that everyone understands what has been proposed and also refused during these discussions. It is always best practice at the end of the meeting discussion to summarize and agree upon what was refused and proposed. That way everyone leaves the discussion “on the same page”

As for your question of whether you could request an additional PWN of something that was left out of the one you received, you may certaintly do so. I would suggest to contact the individual who sent you the PWN and remind them this was omitted. This is a positive proactive step on your part. Just make sure that you are not adding or requesting something additional that was not discussed during the IEP deliberation.

By the way, what position title provided you the PWN?

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]

Kellygh,

You have confused me somewhat. Both you and the LEA may be on the same page and not realize it unless something for certain was omitted by simple error. Exactly, what is your understanding of exactly what the LEA proposed or refused in your recent discussion? What did your first PWN state was proposed or refused? Were the refusals or proposals a part of an identification, evaluation, or a provision of special education issue?

Often, parents will read policy interpretations from OSERS, OCR, and OSEP and will become further disamyed that something may be left to do or has not been done. Parents have to be careful to not read into these policy clarifications more than they should or take them out of context.

There are rules for the PWN and the PWN is necessary only under certain circumstances. It was not intended to serve as “minutes” of a meeting where a refusal or proposal took place. So, if you would, please list the anticipated and actual refusals and proposals that you received in your PWN.

Hope this helps to focus on what you have received or think you have not received.

DRHD
[Modified by: DRHD on December 06, 2012 03:28 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 [b]mandatory[/b]. 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]

Kellygh, please tell me the state in which you reside. I wish to check your state regulations for several matters before I respond to your latest posting. However, please understand that PWN is not only just for “initial evaluations”. The use of RTI data is very appropriate to be used as part of the evaluation process and should have been included in the PWN as a basis of a refusal to evaluate or identify.

Finally, please attempt to provide a “chronology of dates” as to when your process of exposure to the special education process began with your school system. This will be the last piece of information I will request. I promise.

DRHD
[Modified by: DRHD on December 07, 2012 06:14 AM]

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]

Kellygh,

Thank you for the additional information. I also wish to express that I sense you are frustrated by this process and from what you have described, much of your frustration is justified. Several things I wish to share with you:

1) Please address your concerns to the Director of Special Education from this point forward until such time there is closure to the immediate issues. This Director apparently has a handle on things much better than the school personnel at this time. This will alleviate having too many persons in the equation and expressing opinions.

2) Am I to understand that your child was 504 eligible and then you requested your child to be evaluated under IDEA? You mentioned 504 in your posting and this also confused me. So is this an issue of evaluation and identification under the IDEA process or a provision of services requested under your child’s 504 plan?

3) For a child to be identified with an IDEA disability the child’s educational performance must be adversely affected to the extent that special education and related services are necessary. Now, you know the discussions you have had and what was presented in these meetings, does your child meet this statutory eligibility criteria? Please note that progressing from grade to grade does not preclude an identification. It is whether the child’s performance is adversley affected. So what is your conclusion?

4) I am of the opinion that this school division has compromised your procedural safeguards significantly by not meeting timelines of the evaluation process and delaying the referral for evaluation at your request by deferring to a mandatory RTI process. On the other hand, I don’t think the procedural errors have denied a benefit of intervention to your child as much as it simply delayed the process. If this should proceed to a hearing, the Hearing Officer would weigh in the balance the procedural and substantive errors in view of their effect on the child. The position of the school division is very weak due to these issues.

5) Finally, please correct me if my conclusions to this matter are correct:

a) Your child is currently a 504 eligible child and has a 504 implementation plan

b) You requested an IDEA evaluation for a learning disability but the child was found ineligible

c) In the process of the request for an IDEA evaluation, the school division delayed this request by stating your child first is required to receive intervention services through RTI first.

d) As a result of the delays, the timeline compliance for the IDEA evaluation was compromised.

e) You received the PWN but this notice did not provide a clear basis of why your child and on what basis your child was not identified with an IDEA disability. It further did not include the RTI interventions that would serve as the basis of the decision not to identify

Kellygh, do I have all this correct?
[Modified by: DRHD on December 08, 2012 11:35 AM]

[Modified by: DRHD on December 08, 2012 11:37 AM]

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,

Thank you for answering my question and conclusions. You are to be commended for taking such a proactive position on behalf of your son. You are an excellent advocate for your son and he and other parents should be very proud of how you have addressed these issues.

It will be my intent to reflect upon your responses in this last message and offer you some suggestions as you go forward into this “never ending process”. I will respond on this tomorrow as I am in a social gathering this evening. I do want you to know that I received your purposeful response and I wish to convey I am very proud of how you have handled all this. Please understand that your son will be successful in spite of any of our efforts at this juncture. It probably seems odd that I say this but this is true and will come to pass.

If at any time you feel so compelled to contact me beyond this forum, please use my email address @ doc7[email protected]. This will be an option to you if you so desire.

My immediate reaction to what you have provided is that the local school district is about to bring closure to your requests. Please let this play out and I would suggest that you request and notify the Director of Special Education that you wish to “tape record” the next meeting but provide timely notice of this. This will enable you to have a verbatim transcript of this meeting. I think this will be prudent.

Kellygh, you are to be commended.

DRHD
[Modified by: DRHD on December 08, 2012 08:01 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

Thank you, DRHD, for checking in with me. Also, I really appreciate the kind words & support. I often feel like I’m falling short as a parent, with at least one of my kids, so I’m grateful for the encouragement. I will take you up on your offer to email. I don’t have time right now, but I will email you the latest letter I sent to district re: PWN. I met with the guidance counselor (in charge of 504) yesterday. Sigh…Talking with her, you’d almost think I have a better chance of being a Rhoades Scholar at 41 than getting a 504 for my son. I am confident he is eligible. Thanks so much!

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]

You keep me on my toes, DRHD, which is helpful. I am not comfortable with anything at this point but feel like my son meet criteria for 504. I am attaching a link I was provided, by OCR, in response to my seeking clarification. It is more specific in defining “substantially limits” under Q4. Q9 addresses academic performance. I will be interested to know what you &/or others think, DRHD.
http://www2.ed.gov/about/offices/list/ocr/docs/dcl-504faq-201109.html

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]

Thank you for your insight & expertise, DRHD. I guess I’m out of counter arguments and give up. If academic success is defined by good grades, I don’t understand why documents are produced stating a child can be with disability despite having good grades or the school should consider the amount of help a child gets to obtain the good grades. The amount of time, money, love, and effort that goes into supporting our son does not seem minimal to us, but it sounds like as long as a child is not failing or acting out at school, there is no help or protections for us. RTI gives the school an out whether or not the “interventions” are a good fit. They are providing help as far as they are concerned. They can hold meetings without parents, make changes without consent in the context of general ed. It’s beautiful. In our area, we are trading one form of discrepancy for another. “Wait to fail” would be “watch and fail” for our son without outside support. I have a ton of respect for parents/guardians who have been doing this for a long time. My goose is about cooked after a couple of months. Lol. Again, thank you for keeping on my toes & providing a lot of food for thought. Devils advocate is a good thing but I’m (son) facing a loss I guess.

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

Alrighty, DRHD…Thank you for putting me in my place. It’s necessary & a good exercise. Like all of the other disappointing meetings we have had, I had to tantrum & be “debbie downer” for a bit w/ bad news; however, I am not quitting. I’m done sulking, despite the probability of us losing. My counter argument is based on school/district/state assessments not necessarily testing our areas of concern. For example, the school loves to point out solid MAP ; however, MAP scores do not test writing in any form or challenge orthographic memory. I’m not a big fan of MAP. My oldest daughter has been in Gifted & Talented since 3rd grade (when it starts in SC), and her MAP scores can fluctuate 7-15 percentage points between spring & fall testing (spring almost always lower). Off topic. I don’t currently have time to present what will probably be perceived as lame arguments by the school, but I just wanted to say, my/our goose is not yet fully cooked. If y’all feel the earth the shake on Friday at about 3pm, it may be another tantrum, but I will at least sleep knowing I didn’t quit. I’m sure every parent feels like their child deserves &/or qualifies for services, and I am no different. Thank you, DRHD, for challenging me. Grateful!
[Modified by: kellygh on December 12, 2012 10:08 PM]

[Modified by: kellygh on December 12, 2012 10:12 PM]

[Modified by: kellygh on December 13, 2012 08:06 AM]

Kellygh, how did the meeting go on Friday 12/14? I did not feel the earth move so I will presume it went well.

DRHD

DRHD, the IEP portion of the meeting (to discuss the admended OT eval considered “new info”) was postponed. The OT had a family emergency. I agreed to not proceed without her. The 504 mtg, as you indicated it might, did not go in our favor. Denied.

On one hand, I feel better knowing that our son will continue to receive support in RTI. The team appears to be very open to our input and bent over backwards to grant every accommodation, including AT, and listen to concerns. The right support is the most important thing; however, this whole process leaves me confused and a little skeptical. I understand RTI intersects w/ special education & 504, but is there any boundary? I have talked to at least 4 other people in our district that have been denied services through IDEA &/or 504. I realize that is hardly a representative sample, but with some of these kids having significant issues, I wonder if RTI is being used in place of the aforementioned. Just a lot of questions. Is my son not eligible for a 504(still believe he is) and our school is just being terrific offering everything we would have asked for and then some? When I think of being ineligible, I think of not needing services. If a disability is deemed not “substantially limiting” then why offer all the modifications the team just said he doesn’t qualify for? Good teaching and support or using RTI, perhaps inappropriately, to replace 504 & special education? Do schools have an incentive to not classify kids? IDK. If we were to appeal, we certainly can’t argue the school did nothing for us. In the end, my son is really the most important, regardless of how the support is categorized; however, I am still quite confused re: policy. Guess I just let it go? Thanks so much for the support & help!
[Modified by: kellygh on December 16, 2012 08:30 PM]

Kellygh,

Thank you for providing me the update of this past Friday’s meeting. The accommodations offered by the school division appear to be reasonable and to extend the asistance of RTI is something that no doubt was unexpected.

I think you are asking the correct questions about RTI and it’s use as this is the case throughout the different states. I have some opinions about RTI and will share them in a response tomorrow.

Just to be specific, what was the basis of the denial of your son’s eligibility for 504? Also, please help me understand how your son is receiving a related service such as OT and is not eligible for a special education disability category or have I missed something during our dialogue.

DRHD

The OT evaluation was completed 2 days before our IDEA eligibility mtg. I had asked the resource teacher,1 WK prior to the mtg, if it had been done. You could tell by the reaction, “Oh, s***”, it had not. I spoke w/ the OT after our mtg, and she told me she was going to amend her eval. She stated had she seen some of my son’s work prior to the meeting, as well as knowing more about our concerns/struggles, she would have qualified him. She amended the eval & qualified my son for consultative OT services (specifically for AT & working on awkward/immature grip + fatigue). I realize consulting services are not a lot, but we happily take what we can get.

I’m glad RTI is offering support for all students; however, it would have never identified my son. Everything I have read, some from the school, states students are not to remain in Tier 2 or 3 indefinitely; however, the Director of Special Services told us “some kids need that daily aspirin” each day no matter what. I kept pushing on the fact that the work samples they provided are all based on support in Tier 2 RTI, strong parental support, & work w/ an independent psychologist. His performance was said to be the reason for denial, but yet they said he’s being considered w/out support to determine substantial limitations. Now under RTI, they are offering to provide AT/keyboard help each morning, extra time for written work, modifications on written homework, editing, they will keep him after school to work on homework if we decide that would be helpful, provide raised line & other OT paper, dictation etc. They even told us not to hesitate to let them know if we have an intervention(s) we want them to try. All this & more for a child who is not eligible? Makes no sense but what parent would argue with a school that appears to be doing back flips to help? Hmmm.. One of my many concerns about RTI is the glaring lack of child/parental protections & enforceable accountability!
[Modified by: kellygh on December 16, 2012 10:57 PM]

Kellygh,

Throughout my career, I have evolved thru the the passage of PL 94-142 and the present day iterations of IDEA 2004 as amended, and I am taken aback by what you have described as your experience in this SC school district. I can’t help but sense there are some well intended persons who are attempting to provide assistance to you but I conclude they have offered “smoke and mirrors” to accommodate the compliance issues that you have experienced. In this regard please note the following:

1) Occupational therapy is not a special education service. It is a related service. For a child to receive a related service there must be a disability. To date the local school district did not find your son eligible as a child with a disability but yet the OT in this matter has stated she will provide a consultative OT service. This is simply not consistent with federal and state regulations. To the extent, this school district will now provide a related service to a non-disabled child is interesting.

2) The RTI issue is a “never ending story”. The RTI strategy evolved thru IDEA statutory language and is probably one of the most confusing sources of intervention for suspected children with learning disabilities. Congressional intent in matters specific to the identification of suspected LD and pertinent to assessing the child would be the extent a child would respond to itervention that would be research based and progress monitored. Once that was stated in the IDEA revisions, RTI took on a life of it’s own and it continues to spiral out of control. RTI was intended to be an alternative to the use of the “discrepancy model” of comparing ability to achievement for a suspected child with a learning disability. However, the IDEA statute makes it very clear that RTI is not a mandated intervention and the use of the discrepancy model was not prohibited. The problem has been that states and local school districts have taken the RTI concept and has made it mandatory that all referrals for special education must progress thru school based RTI intervention first. The problem has been is that RTI has in fact been used and has served to delay and or deny the right for a child to receive a timely evaluation for special education services. This was the case in your situation. Congress never intended for early intervention to delay or deny your procedural safeguards.

3) As for what you now have is this: 1) Your child did not meet the eligibility criteria for an IDEA classification as learning disabled 2) Your child did not meet the eligibility criteria for 504 3) Your child was found to be appropriate to receive OT as a related service on a consultative basis and has no identified disability and 4) Your child continues to be provided RTI services to continue to search for the “substantial limitation to a major life activity: learning”. Kellygh, I find these developments to be mindboggling and beyond my own experienced comprehension.

Nontheless, the issue before you is what will be your course of action at this time? My suggestion is to “ride the wave of uncertainty” because your child is receiving a benefit and interventions that cannot be totally understood. My only comfort in all this is that this school district is attempting to make something right that has procedurally advanced in a non-compliant way.

I envision no benefit for you at this time to seek avenues of appeal, impasse, mediation, a due process hearing, or even a complaint action for now. Let this all play out for the moment. As I mentioned before, your son will succeed in spite of the efforts being implemented in his behalf. Please keep me posted.

DRHD
[Modified by: DRHD on December 17, 2012 10:31 AM]

Thank you so much, DRHD, for all of your support and wisdom. For now, I will ride it out, but I have questions for our next meeting. How long will these services be provided is a start. The 504 team explicitly stated, including the Director of Special Services, that my son does have a SLD. “Your son is absolutely learning disabled, we are not disputing that, but we are not certain it substantially limits.” There is an attorney in our area that specializes in special education law, and I am going to call her for a consult. I don’t necessarily plan on appealing, but I would like clarification on some of these legal issues here in Dixie. I’m starting to question my own reading comprehension abilities, Lol! Again, I’m happy about services, but I know they can be yanked at any time, without consent, or notice. We were encouraged 2x in the mtg to focus on all of our son’s strengths & being a great kid. Really? Talk about patronizing. Of course we know how terrific my son is & all his strengths. It’s the whole reason I get so upset, spend a lot of time, $, reading/seeking info, & going down the eligibility road. I love our little guy fiercely & know he has gifts to share with this world. I really appreciate the time you have given me, DRHD! Blessings

Kellygh,

For some reason, I received no notification that you had responded to my earlier posting. My internet connection and internet email has been so unstable I am not sure what I have received or have not received. Nontheless, I have reviewed your latest posting and find this school district to be even more remarkable than I have previously intimated.

Your school system has stated to you that they admit your son is SLD but yet they have chosen to not classify him as such under IDEA. Interesting. Then, they are attempting to implement services to demonstrate the substantial limitation to his potential eligibility for a 504 identification. Even more interesting.

Within the criteria of who may be eligible for a 504 disability it is stated that those who have a “physical or mental impairment” are the target group. Within the target group of “mental impairment”, the statute and regulations are very explicit that this could include those with a “specific learing disability”. I am not getting the picture from this SC school division who chooses to interpret these rules and regulations to suit their purposes.

I would definetly encourage you to consult the special education attorney there where you reside and please have me to understand if you are told anything any differently that what I have been describing for you in these issues. I just find this all perplexing.

As the game plan is to “ride the wave” I think is prudent. Just keep me informed.
[Modified by: DRHD on December 18, 2012 11:45 AM]

What does “unameliorated state” mean from a legal perspective? I only know what amelioration (n) means in everyday language; however, after looking back over 504 mtg paperwork, I believe this is where the crux of the disagreement occurs. The school noted my son’s documented disability but denial is said to be because he does not demonstrate “substantial limitation” compared to average peers. The school says the work sample they paraded out was done w/out help & guidance. This appears to be the way they are defining unameliorated. Independent work w/out assistance from the teacher. I define unameliorated as not getting help & support in the home, school, or professionally. In other words, improvement or representative work samples must be considered in light of RTI participation etc., because they can not be assumed to show the how my son is affected.Nevermind the exceeding number of work samples that show differently. The school psychologist’s own work samples is a good one, but, of course, the school explains that away with “that’s just one snapshot; conversely, we are not allowed to use that same argument with the 1 work sample the teacher provided. Ha! Am I wrong in my interpretation? I hope what I’m trying to say made sense.
[Modified by: kellygh on December 18, 2012 06:58 PM]

Kellygh,

I think you have asked me a question that I will want to do some case law research to define what this cutting edge school district is trying to say to you. I think I know but I want to provide you with something concrete. I must say, this is all so very interesting. I do not believe I have ever come across a school district that swallows elephants and chokes on gnats like this one. I’ll get back to you after I amelioriate.

DRHD

Kellygh,

The below FAQ came from an OCR FAQ on the identification of chilodren with a 504 disability;

21. May school districts consider “mitigating measures” used by a student in determining whether the student has a disability under Section 504?
No. As of January 1, 2009, school districts, in determining whether a student has a physical or mental impairment that substantially limits that student in a major life activity, must not consider the ameliorating effects of any mitigating measures that student is using. This is a change from prior law. Before January 1, 2009, school districts had to consider a student’s use of mitigating measures in determining whether that student had a physical or mental impairment that substantially limited that student in a major life activity. In the Amendments Act (see FAQ 1), however, Congress specified that the ameliorative effects of mitigating measures must not be considered in determining if a person is an individual with a disability.
Congress did not define the term “mitigating measures” but rather provided a non-exhaustive list of “mitigating measures.” The mitigating measures are as follows: medication; medical supplies, equipment or appliances; low-vision devices (which do not include ordinary eyeglasses or contact lenses); prosthetics (including limbs and devices); hearing aids and cochlear implants or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; and learned behavioral or adaptive neurological modifications.
Congress created one exception to the mitigating measures analysis. The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining if an impairment substantially limits a major life activity. “Ordinary eyeglasses or contact lenses” are lenses that are intended to fully correct visual acuity or eliminate refractive error, whereas “low-vision devices” (listed above) are devices that magnify, enhance, or otherwise augment a visual image.

I’m of the opinion that this school district is interpreting the rules of 504 before the amendments to ADA that amended 504 at the same time.

DRHD

The previous post corresponds to my understanding of ameliorative effects &/or mitigating measures. I asked for the rubric used to determine eligibility today, because they did not give me a copy. There was considerable discussion on item “C” under Part 111-Substantial Limitation. A) Does this student demonstrate a substantial limitation (underlined) on one or more of the major life activities when compared to an average student of approximately the same age? Team answered “No.” Team always means school staff in our case. B)Is the substantial limitation due to the identified disability and not to other factors such as environment, motivation etc. Team answered “no” again. ***C) Has the above determination been made without reference to the ameliorative effects of mitigating measures such as medication, equipment, prosthetics, devices such as hearing aids, mobility devices, oxygen, use of assitive technology, or learned behavioral or nerilogical modifications? Team answers “yes.” I also have copies of the work samples from other students described as “average” by the teacher. Opps..the name of the child is on two of them! As a parent & therapist, I’m pretty sure that is a no-no. Anyway, when discussing the above, we kept stating that deference has to be given to the amount of input is required for my son’s output. How do you compare that? Well, the school’s response was our son’s work sample is with no guidance or help. Strictly independent work. That’s apparently what constitutes unameliorative state to them. If our son didn’t have difficulty commensurate with his peers, why would we seek an evaluation, eligibility etc.? If their logic holds, no child who is gifted or doing well enough can have a qualifying learning disability. Again, no matter how RTI slices it, services (eligibility) are still based on a discrepancy model. The only difference, IMO, is the current version excludes those not failing. In the 1st PWN we received, prong one was said to be met due to a “severe and unusual discrepancy, ” and I have talked & written until I’m blue in the face regarding the input that goes into output with our son, and it just doesn’t matter. Average, above average, or superior=denial, except under RTI. My son & oldest daughter are in a non-title 1 school with over 1000nd kids, gulp, and I forgot to ask how many are served under IDEA or a 504 plan. There are 68 kids being served in RTI w/ the highest number in 2nd grade (son is in 2nd grade). 11 in tier 3 and 6 in tier 2. BTW, I scheduled a consult w/ an attorney on the 4th. Just got a mtg. notice for the 8th (IEP team) to discuss the admended OT eval. I won’t be surprised at all if the district asks the OT to change the eval again to “does not qualify.”
[Modified by: kellygh on December 19, 2012 04:24 PM]

[Modified by: kellygh on December 19, 2012 04:25 PM]

Kellygh,

I trust you and your family had a very nice Holiday and have settled into the flow of a New Year.

I would appreciate if you would share the outcome of your visit with the attorney you met with on the 4th. Also, you have a meeting coming up on the 8th regarding OT that should be interesting.

Please update me if you will.

DRHD

Thanks so much for checking-in, DRHD! I hope you & yours had a wonderful holiday as well. My New Year started with me being sick as a dog; therefore, I had to reschedule my appt w/ the attorney for the 10th. I will be sure to update.

The IEP team “reunion,” lol, went OK. We were greeted by more faces than were present at any previous mtg. We had met everyone previously but never have so many been in attendance at once. Coincidence? After the director of SS opened with the purpose of the mtg, she asked my son’s teacher to review the most recent RTI data, and I interrupted. I stated we had been denied an IEP & 504, recently had the 504 eligibility mtg & RTI update, and it was superfluous to rehash; in addition, I added we know qualifying for consultative OT services would not change my son’s ID status. Whew! The unspoken relief in the room was palpable. Hallelujah! The Hamilton’s have enough sense to know everyone hates redundacy, has more important cases/things to attend to, and ain’t nothing (short of failing, major illness, or injury) that is going to change that.

Thank you, again, for inquiring! Back soon.
Kellygh
[Modified by: kellygh on January 08, 2013 09:28 PM]

[Modified by: kellygh on January 08, 2013 09:29 PM]

BTW, I asked the 504 coordinator how many kids had 504 plans. She said “one.” That one child covers Pre-K through 2nd grade. There are approx. 1,050 kids @ our school (Pre-K—5th) Any idea the percentage of kids, roughly, in the US w/ 504 plans? 1 child seemed astonishingly low, but I base that on immediate gut rather than stats/knowledge. None the less, I can confirm there has not been an increase in 504 eligibility w/in our district as some have speculated would result from changes to law.

Kellygh,

Thank you for responding to my message and it is quite interesting to hear about your meeting. I remain perplexed as to how a child in this school district is eligible for OT as a related service when their is no identified disability under IDEA. Interesting indeed.

I would like to request that after you meet with your attorney and have more time to reflect upon this experience, please respond back to me.

I do hope you are feeling better.

DRHD

Kellygh,

For a school to have over 1.000 children and to have only 1 child identified with a qualified 504 disability is suspect. You mentioned that it could be due to the changes in the law. My first question is which one: IDEA or the Rehabilitation Act of 1973 as amended (Section 504).?

As for 504 classificatiions, the amendments to the American with Disabilities Act (ADA), 2008 revised the Rehabilitation Act of 1973 at the same time and frankly broadened the scope of classification significantly. In the revisions to ADA, Congress became tougher to discriminate against those with qualified disabilities by broadening the scope of who would be eligible. The revisions also overturned several Supreme Court decisions litigated on ADA issues. This was a powerful statement by Congress.

Nontheless, school districts nationwide are playing a numbers game and using RTI as the process to lessen the number of children who are being referred for evaluation under both IDEA and 504. Also, IDEA brings federal funding to a school district on a per disabled child basis while 504 is a civil rights statute and has no funding mechanism to it. In sum and to answer your question, the proportion of 504 classifications to a student body should frankly be very low. One reason for this is that the identification criteria is much more stringent while the IDEA criteria are less so. There seems to be no pattern as to how many should be identified in a given school population but in my opinion each school district seems to take a position on issues relative to identification for 504.

I will comment further on this.

DRHD

[Modified by: DRHD on January 09, 2013 07:35 AM]

Yes, I was referring to the broadening scope of ADA & 504 classification. It seems many thought the 2008 revisions would open 504 classification to many students previously deemed ineligible. My only point was it does not seem the broadening scope has had any impact on our elementary school. Lol. I would expect numbers to be low; however, I assumed the number would be higher, if even just from the increase in children diagnosed with medical conditions such as ADHD & diabetes.

I am only hung-up on classification, because of the increased protections/due process. If RTI is going to be used to intervene, remediate, monitor, &/or identify SLD, it seems imperative, IMO, that IDEA, ADA like protections are provided to parents & children in tier 2 or 3. 504 is unfunded, but I do believe schools are allowed to use a certain percentage of IDEA funds for RTI?? If so, I wonder if the number of students a school has in RTI dicates the percentage of funds they may draw? Thanks for the responses!