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.

Document, Document, Document: Maintaining Your Child’s Special Education File

Parents may not expect to get into disagreement with their child’s school district about whether their child with a disability is receiving special education and related services in compliance with the Individuals with Disabilities Education Act (IDEA) that are sufficient to satisfy the child’s right to a “free and appropriate education” (FAPE).

Whether or not a parent asks an attorney to become involved in dealing with such a disagreement, it’s important for parents to retain ALL of the documents, communications, and records related to their child’s disability-related needs, including the following:

• Emails, memos, and letters to and from the parent and the school district and area education agency (AEA) concerning any matter related to the child’s disability and/or special education services.

• Records of all requests by the parent in regard to evaluations, reevaluations, changes in services, and educational placement.

• Prior Written Notices to the parent provided by the school district and/or AEA in regard to actions proposed or refused by the school district and/or AEA.

• Individualized Education Program (IEP) documents

• IEP Team meeting notices and a list of people who actually attended each IEP meeting.

• Copies of parental consents and releases of information.

• Reports and letters from private medical, psychological, and therapeutic evaluations, consultations and services related to the child’s disability, and social, emotional, and academic progress.

• Reports and letters from all educational, psychological, and functional assessments and evaluations performed by the school district and AEA related to the child’s disability, and social, emotional, and academic progress.

• Records of all disciplinary and attendance matters.

• All grade report cards and IEP report cards/progress reports;

• All reports from school-wide standardized testing (e.g., the Iowa Tests, DIBELS, MAP, NWEAE);

• Records of the names of all medications taken by the child in connection with a disability or that have a bearing on his or her functioning;

• Parent notes and audio recordings from all IEP meetings.

If at all possible, scan hard-copy documents to pdf format, save them on a hard drive and back them up to an external hard drive, and title them by the date and type of document (e.g., 1-20-2012 7th Grade Autism Clinic Evaluation, 2-20-2012 7th Grade Iowa Tests Report, 4-1-2012 7th OT Evaluation).

Other tips that parents have found helpful include:

• Emails: Retain ALL emails sent by you or sent to you from anyone from the school district or area education agency. Before you change email services, forward those emails to your new account.

• IEPs and other documents: Upon receiving an document, immediately write the date you received it in the upper right hand corner and write any notes about its significance on an attached sticky note. File in order by date.

Parents May Be “Outvoted” at IEP Team Meetings, But Still Have Rights

The U.S. Department of Education’s Office of Special Education Programs (OSEP) responded to a parent’s letter inquiring about IEP Team decision making in its Letter to Richards, 55 IDELR 107 (OSEP 2010). In the letter, OSEP stated that it is not appropriate for an IEP to make decisions about a child’s IEP by majority vote. OSEP also noted that while the IEP team should try to reach general agreement, the school district has the final responsibility for determining the appropriate services.

When parents and school districts disagree about a child’s IEP, parents commonly have the feeling that they have been, in effect, outvoted by the school district and area education agency (AEA) personnel at the meeting. While the law assigns school districts the final responsibility for determining appropriate services, it also requires that the district provide “prior written notice” of the school district’s decision regarding the child’s educational program and the parents’ right to request a due process hearing.

“Prior Written Notice” is notice given in writing to parents in regard to an action proposed or refused by the school district with respect to a child’s special education program. School districts are required to provide it whenever the district or AEA refuses to implement a parent’s proposal, or proposes to change a child's identification, evaluation, or placement. The proposal or refusal must be in regard to a matter over which the IEP team decision making authority.

The written notice must be provided to the parent after the district or AEA has made the decision to refuse or propose, but within a reasonable time before the district or AEA implements the proposed action. Before the action is implemented, the parent, district, or AEA has the right to request mediation or an impartial due process hearing on any proposed or refused action.

Prior written notice MUST contain the following:

∙ A description of the action proposed or refused.
∙ An explanation of why the district or AEA proposes or refuses to take the action.
∙ A description of the options the district or AEA considered and the reasons why those options were rejected.
∙ A description of each evaluation procedure, test, record, or report the district or AEA used as a basis for the proposed or refused action.
∙ A description of any other factors that are relevant to the district or AEA’s proposal or refusal.
∙ If the proposed action a change in the child’s identification, evaluation, or placement, when that action will be implemented
∙ The name and contact information about the person to whom the parent may address questions regarding the notice
∙ A statement that parents have the right to challenge the decision by invoking their rights under the IDEA’s procedural safeguards.

School districts MUST provide parents with prior written notice when they refuse or propose to do any of the following:

∙ Conduct or deny an initial evaluation
∙ Change or refuse to change a child’s services or placement
∙ Add, refuse to add, or terminate a service, support, or related service
∙ Change or refuse to change the means through which the child’s services are delivered
∙ Provide, deny, delete, or change a child’s access to Extended School Year services
∙ Add, change, or delete an IEP goal
∙ Whenever discipline results in a change of placement