Parental Rights in Special Education - Prior Written Notice

The Individuals with Disabilities Education Act's (IDEA) implementing regulations require that a school district give written notice to the parent of a child with a disability within a reasonable time before:

(1) the school plans to take (or refuses to take) actions proposed by either the parent or the school district related to the identification, evaluation, or educational placement of the child; or

(2) the school plans to take (or refuses to take) actions proposed by either the parent or the school district related to the provision of a free appropriate public education (FAPE) to the child. (34 CFR §300.503(a)).

Prior written notice must include:

• a description of the action proposed or refused by the school;
• an explanation of why the school proposes or refuses to take the action;
• a description of each evaluation procedure, assessment, record, or report the school used as a basis for its decision;
• a statement that the IDEA’s procedural safeguards provide the parents of the child with a disability with rights and procedures for resolving disputes related to the subject matter of the prior written notice, and how the parents can obtain a copy of them;
• resources for parents in order to obtain assistance in understanding these procedures;
• a description of other options that the IEP Team considered and the reasons why those options were rejected; and
• a description of other factors relevant to the school’s proposal or refusal. (§ 300.503(b))

For example, a parent must receive this notice:

1. when the school wants to conduct an initial evaluation of the child;
2. when the parent has asked for the child to be evaluated and the school denies the request;
3. when the school wants to initiate or change the child’s identification as a "child with a disability;"
4. when the school proposes or refuses to provide a particular educational placement for the child;
5. when the school wants to change the child’s educational placement;
6. when the school wants to change aspects of the special education or related services that the child is receiving; and
7. when the school refuses a parent’s request in regard to the educational services the child is receiving.

If a parent has made a request of the school, or the school has proposed or refused to take action, and the parent has not received the required prior written notice, the parent should ask the school to provide it.  I recommend that parents do this by email, and retain both that email and the school district's response in order to create a record.

Bullying, Harassment, and Children with Disabilities

While both Section 504 of the Rehabilitation Act (section 504) and the Americans with Disability Act (ADA) prohibit discrimination on the basis of disability, children with disabilities are bullied at public schools more frequently than their nondisabled peers. In view of this, schools should take note that three United States circuit courts of appeals have directly held that bullying of students with disabilities may amount to a failure to provide a free and appropriate education [see T.K v. New York City Department of Education, 779 F.Supp.2d 289 (E.D.N.Y, 2011)].

The Office of Civil Rights enforces Section 504 and the ADA. In a “Dear Colleague Letter” dated October 26, 2010, Assistant Secretary for Civil Rights Russlynn Ali reminded schools that student misconduct that falls under a school’s anti bullying policy also may trigger the school’s responsibilities under these federal anti-discrimination laws and that these laws may be violated when peer harassment creates a hostile environment and the harassment is tolerated, not adequately addressed, or ignored by school employees. This was followed by missive dated December 16, 2010, from Secretary of Education, Arne Duncan,titled the “Secretary of Education Bullying Law and Policy Memo.”

The U.S. Department of Education defines disability harassment as “intimidation or abusive behavior based on disability that creates a hostile environment.” Children who have deficits in the areas of social and communication skills are at the greatest risk for bullying and victimization. When harassed or bullied, they experience peer rejection, are marginalized from their schoolmates, have fewer opportunities to learn from peers who model appropriate social skills, and are more likely to struggle with loneliness. After the Columbine massacre, it was not surprising to learn that a study of thirty-seven school shootings found that in two-thirds of of those incidents, the shooters described themselves as feeling bullied, persecuted, or threatened at school.

Bullying and harassment take many forms, including verbal and nonverbal behavior, and conduct that is physically threatening, harmful, and humiliating. Reports of incidents in which children with disabilities have been bullied and harassed at school are legion. They include situations in which elementary school bullies bait children with significant social skills deficits until they strike out or have a full-blown meltdowns, and play cooties-type "games" in children who have been touched by the child with a disability are declared to have that child's “germs.” They also include situations in which bullies use the school's Bully Reporting Procedures to falsely report inappropriate conduct on the part of a child with a disability.