11.27.2012
How to Say No: Fundamentals of Title 34 C.F.R. Section 300.503: The Prior Written Notice

Over the years two questions have come up frequently regarding prior written notices to parents/legal guardians:

1.  When is a LEA required to provide prior written notice (“PWN”)?

2.  What constitutes a legally sufficient PWN?

Fortunately for LEAs, the IDEA and case law address both of these questions with some detail.

When Notice is Required

Under the IDEA a parent must be provided with prior written notice a reasonable time before the district “proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.” (34 C.F.R. § 300.503(a)(1)) Significant is the requirement that the notice be in writing and it must be written in language understandable to the general public and provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. (34 C.F.R. § 300.503(c))

We know from case law that it is only when a proposed change in an educational program substantially or materially affects the composition of the educational program that a change of placement occurs triggering the need to prepare a PWN. (Weil v. Board of Elementary & Secondary Education, 17 IDELR 902 (5th Cir. 1991))

For example, temporarily changing the location of a student’s specialized academic instruction on a school’s campus due to a plumbing issue does not trigger the PWN requirements as long as the student is still receiving the same educational programming. By way of contrast, graduation is considered to be a change in placement and students who are eligible for IDEA protections must receive prior written notice that graduating with a regular high school diploma is a change of placement. The graduation scenario is one of the few instances in which a PWN is or should be sent out prior to the end of the school year (typically in the spring) in which the student in question is anticipated to graduate and without being dependent on the timing of any IEP team meeting that may also be occurring during the spring semester of the student’s graduating year.

Timing the issuance of a PWN in all instances other than graduation is impacted by the prohibition against “predetermination.” In other words, if the PWN regulation is followed literally, then PWNs should be sent out before many, if not most, initial IEP team meetings, annual IEP team meetings and triennial IEP team meetings. However, in good faith, we cannot advise this practice because it directly conflicts with the predetermination ban. Consequently, the safer practice is to send PWNs after IEP team meetings in situations where a conflict in the meeting requires or otherwise warrants clarification through a PWN that articulates the LEA’s position on the point or points of contention. That said, in the event that the IEP team cannot convene with the parents’/guardians’ participation in a timely manner (i.e., prior to the start of a school year), issuing a PWN outlining the district’s proposed FAPE offer is an advisable practice. In such instance, we recommend offering to convene an IEP meeting to review the PWN and the district’s proposals (or refusals) at a mutually convenient date as soon as mutually convenient.

The PWN Document

While some LEAs are utilizing fill-in-the-blank forms, including the sample forms available on the U.S. Department of Education’s website, LEAs should do so with some caution, to avoid “cookie cutter” responses that are not individualized to the unique situation pertinent to the student.

According to the specific PWN requirements, a PWN must include:

1.  A description of the action proposed or refused;

2.  An explanation of why the agency proposed or refused to take the action;

3.  A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;

4.  A description of other options the IEP Team considered and the reasons why those options were rejected;

5.  A description of other factors relevant to the agency’s proposal or refusal;

6.  A statement that the parents of a child with a disability have protection under the procedural safeguards of the IDEA and the means by which a copy of a description of the procedural safeguards can be obtained; and

7.   Sources for parents to contact to obtain assistance in understanding the provisions of the IDEA.

Additionally, an LEA may include any additional information it deems to be pertinent to the request such as references to past correspondence or communication with the parents, evaluations that are currently being conducted, parental refusal to consent to proposed assessments, unique provisions of law that address the specific situation at hand, etc.

FAPE DENIAL

A thoughtfully written PWN is an effective communication tool allowing the parents to fully understand the action being proposed or refused by the LEA. What is important to remember is that the PWN must provide sufficient detail to allow parental participation in decision-making concerning the student’s educational program.

WHAT IF THERE IS NO DISPUTE?

Most IEPs do not result in a dispute with the student’s family. Consequently, it is not the universal practice for LEAs to prepare PWNs before or after all initial, annual, addendum and triennial IEP team meetings in which changes of placement are commonplace and met with full parental written consent. The primary driver behind the absence of a PWN in these cases is that there is simply no dispute to clarify through a PWN: the IEP is developed, the student’s family understands what is being offered and why, and, perhaps most importantly, fully consents to the implementation of the newly offered program. In these situations, we understand why LEAs are reluctant to create additional paperwork. However, in those situations where a dispute has been raised during the IEP process, and particularly where full consent to implement the IEP or proposed course of action (such as assessment) has not been provided, we strongly urge your LEA to provide a PWN that complies with the law to address the point or points of contention.

 

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