Post by dihicks6 on Mar 27, 2008 13:46:52 GMT -5
ARE YOU USING YOUR MOST EFFECTIVE ADVOCACY TOOL?
PRIOR WRITTEN NOTICE
Reed Martin, J.D.
Most parents return from their IEP meetings asking --
“What happened?”
“What is the school going to do now?”
“Did they agree with me that we need more evaluation?”
“Are they going to stop that substitute teacher from removing my child from the classroom and just sending him to sit alone in the principal’s office?”
“Are they still going to refuse to store the prescription medication my child’s physician has asked them to keep at school?”
“Did we reach agreement on Extended School Year services for this next summer or am I going to have to do something else to nail it down?”
“Am I supposed to do something now, or just wait for the school to act?”
The Congress solved that problem in 1974 as they were beginning to develop the statute that we now call the Individuals with Disabilities Education Act (IDEA). The Congress placed in that statute THIRTY YEARS AGO a problem solving process called “Prior Written Notice.” It has not been changed in thirty years.
In the last thirty years, I have NEVER seen Prior Written Notice issued by any school district in any State. I have challenged workshop audiences to send me an example of the required Prior Written Notice if they think they have one, but I have never gotten one that even comes close.
I have been loudly challenged by school people in the audience that they, in fact, comply with Prior Written Notice and I have congratulated them and asked them to send me a copy – with any personal information deleted of course -- but I have never gotten one. On a few occasions I have gotten a piece of paper that is labeled “Prior Written Notice” but it does not come one-percent close to the clear requirements of the Statute and the Regulations.
I have won on the issue of “Failure to provide Prior Written Notice” in every case I have had to take into court in the last thirty years. In 1986 we worked with Congress to amend the statute – adding the Handicapped Children Protection Act -- so that if there were a violation of law such as neglecting Prior Written Notice, the Court that awards attorneys fees to the prevailing party could not reduce the attorney fee award either in the number of billable hours we were asking for, or the dollar rate per hour we were charging. So not only have we won on the issue, but we have won our full attorney fee award request as a result of this blatant violation of the duty to provide Prior Written Notice.
Yet every school district we have ever interacted with continues to violate this very important section of the IDEA Statute and the Regulations.
Before quoting the statute, let us address one semantic problem. The statute and the regulations are referred to as “Prior Written Notice.” “Prior” to what? Written Notice is to be issued, by the school district, PRIOR to the school taking any action, or refusing to take any action, in regard to the issue at hand.
As an example, you go to an IEP meeting. You ask for consideration of Extended School Year services for this next summer so that your child does not suffer the disaster you had last Fall after a Summer with no services. A school person denies any discussion, stating “We don’t have any budget for any services over the Summer.”
The school owes you Prior Written Notice – now, in the minutes of the IEP meeting or sent to you within the next 10 business days – making clear in writing that they are not going to provide Extended School Year services – and answering the questions in Prior Written Notice required by the Statute at 20 U.S.C. 1415(b)(3) and (c):
(1) describing in writing what you had asked for and that the school personnel at the IEP have refused;
(2) an explanation in writing of why they refused to take that action you requested;
(3) a written description of any options the school personnel at the IEP meeting considered and the written reasons why those other options were rejected;
(4) a written description of each evaluation procedure, test, record, or report that the school personnel used as a basis for their refusal;
(5) a written description of any other factors that are relevant to the school personnel at the IEP meeting’s refusal;
(6) a written statement that the parents have protections under the procedural safeguards of the IDEA and the way the parents can obtain a written copy of those procedural safeguards; and
(7) a written statement of sources that the parents can contact for assistance in understanding the provisions of this protection.
Without Prior Written Notice the parent would have to sit around, waiting to see what was going to happen.
So When Must Your School District Give You “Prior Written Notice”?
This requirement is not triggered just at an IEP meeting. Prior Written Notice must be given to the parents any time that the parent proposes something, that the school refuses, or that the school proposes any change.
The IDEA STATUTE has made clear for 30 years what is required.
Title 20 of the United States Code, at Section 1415(b)(3) and (c) requires that
- a reasonable time
- prior to a school proposing,
- or refusing,
- to initiate
- or change,
- the identification,
- evaluation,
- educational placement
- or provision of a Free, Appropriate Public Education (FAPE),
- the parent must be given a statement in writing of what the school is going to do, or more often, what they are refusing to do.
NOTE: You should recognize that what is described above is EVERY possible step in the process, from beginning to end.
Although it is called “Prior” Written Notice -- it is “Notice” that is given by the school district “Prior to the school district carrying out some action after a meeting,” not “Prior” to the meeting.
It is not issued “Prior” to the IDEA IEP meeting – it is sent within 10 school days AFTER the IEP meeting to the parent, to explain – clearly in writing – what the school proposed that the parent refused, what the parent proposed that the school refused, and each of the (7) elements listed above.
Many parents claim they did not get Prior Written Notice because it was not sent to them BEFORE the meeting. WRONG. It is written notice sent to the parent within 10 days AFTER the meeting -- to document what the school is going to do as a result of the meeting – and you are being told what they are going to do, PRIOR to the school carrying it out – so that you can take action if you need to.
Many school personnel claim they have given Prior Written Notice to the parents because they sent a note to the parents saying the IEP meeting will be next Tuesday.
That is clearly not the Prior Written Notice required by the Statute.
By the parents actually receiving Prior Written Notice, before the school puts the new IEP into action, the parent has time to protest in writing and stop the wrongful action before the school goes ahead.
If the school knows that the parent who will receive the notice is visually impaired or hearing impaired, or cannot read or cannot read in English, then the school district is required to provide the notice in a format that communicates to that parent what a typical reader would understand.
What is described above is taken from the IDEA Statute at 20 U.S.C. 1415(b)(3) and (c).
The IDEA Regulations that implement the requirements for Prior Written Notice by the public agency, and the content of that notice, is at 34 C.F.R. 300.503.
The Regulations – 34 C.F.R. 300.503 –
Prior Notice By The Public Agency and Content of Notice
(a) Notice. (1) Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency
(i) proposes to initiate, or change, the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or
(ii) Refuses to initiate, or change, the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.
(2) If the notice described under paragraph (a)(1) of this section relates to an action proposed by the public agency that also requires parental consent under Sec. 300.505, the agency may give notice at the same time it requests parent consent.
(b) Content of Notice. The notice required must include:
(1) A description of the action proposed or refused by the Agency;
(2) An explanation of why the agency proposes or refuses to take the action;
(3) A description of any other options that the agency considered and the reasons why those options were rejected;
(4) A description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;
(5) A description of any other factors that are 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 this part and, if this notice is not an initial referral for evaluation, 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 this part.
How Can You Use This To Help Your Child?
This is the most important procedural safeguard for any parent and child. Insist in writing after any meeting with your school district, and especially after an IEP meeting, that you receive Prior Written Notice.
This should also be used for any issue in dispute. Even outside an IEP meeting if you feel you need more evaluation, for example, you should ask for that in writing and remind the school district that they owe you “Prior Written Notice” in responding to your request. The term in the Statute and in the Regulations – “… or the provision of a Free Appropriate Public Education” – covers everything.
If your school does not issue you anything in writing at the meeting, or in response to your inquiry, then you should COMPLAIN no more than 10 days later, IN WRITING to your school superintendent.
Claim that you did not receive the Prior Written Notice you are entitled to and that you want a copy of your school district’s written policy on Prior Written Notice.
Indicate in your letter that you want a copy of the minutes of the school board meeting when your school board adopted their policy on Prior Written Notice.
If you have not gotten a satisfactory reply from your school within 10 days, then complain to your State Education Agency that your local school district has knowingly violated your right to Prior Written Notice after an IEP meeting or after some other request of yours and you want a written answer of what the State Education Agency is going to do about it.
You can also send a copy of your letter to the Assistant Secretary of Education, U.S. Department of Education, Washington, D.C. 20003.
Procedure really counts.
”Procedures,” such as Prior Written Notice, are as important as the “substance” of the IDEA.
Supreme Court Chief Justice Rehnquist, writing in Board of Education v. Rowley, 458 U.S. 176 (1982), the very first “special education” case ever heard by the U.S. Supreme Court, explained that a court’s inquiry is going to be into “procedure” and into “substance.”
Chief Justice Rehnquist indicated, at page 206 of the Rowley decision that the first inquiry by a Court is whether the parties have “complied with the procedures set forth in the Act.”
The Chief Justice said further, “When the elaborate and highly specific procedural safeguards embodied in 1415 [which is where Prior Written Notice is] are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see e.g. Sections 1415(a)-(d) [editor’s note – that contains Prior Written Notice] as it did upon the measurement of the resulting IEP against a substantive standard.”
Prior Written Notice needs to be a very important part of your advocacy strategies.
PRIOR WRITTEN NOTICE
Reed Martin, J.D.
Most parents return from their IEP meetings asking --
“What happened?”
“What is the school going to do now?”
“Did they agree with me that we need more evaluation?”
“Are they going to stop that substitute teacher from removing my child from the classroom and just sending him to sit alone in the principal’s office?”
“Are they still going to refuse to store the prescription medication my child’s physician has asked them to keep at school?”
“Did we reach agreement on Extended School Year services for this next summer or am I going to have to do something else to nail it down?”
“Am I supposed to do something now, or just wait for the school to act?”
The Congress solved that problem in 1974 as they were beginning to develop the statute that we now call the Individuals with Disabilities Education Act (IDEA). The Congress placed in that statute THIRTY YEARS AGO a problem solving process called “Prior Written Notice.” It has not been changed in thirty years.
In the last thirty years, I have NEVER seen Prior Written Notice issued by any school district in any State. I have challenged workshop audiences to send me an example of the required Prior Written Notice if they think they have one, but I have never gotten one that even comes close.
I have been loudly challenged by school people in the audience that they, in fact, comply with Prior Written Notice and I have congratulated them and asked them to send me a copy – with any personal information deleted of course -- but I have never gotten one. On a few occasions I have gotten a piece of paper that is labeled “Prior Written Notice” but it does not come one-percent close to the clear requirements of the Statute and the Regulations.
I have won on the issue of “Failure to provide Prior Written Notice” in every case I have had to take into court in the last thirty years. In 1986 we worked with Congress to amend the statute – adding the Handicapped Children Protection Act -- so that if there were a violation of law such as neglecting Prior Written Notice, the Court that awards attorneys fees to the prevailing party could not reduce the attorney fee award either in the number of billable hours we were asking for, or the dollar rate per hour we were charging. So not only have we won on the issue, but we have won our full attorney fee award request as a result of this blatant violation of the duty to provide Prior Written Notice.
Yet every school district we have ever interacted with continues to violate this very important section of the IDEA Statute and the Regulations.
Before quoting the statute, let us address one semantic problem. The statute and the regulations are referred to as “Prior Written Notice.” “Prior” to what? Written Notice is to be issued, by the school district, PRIOR to the school taking any action, or refusing to take any action, in regard to the issue at hand.
As an example, you go to an IEP meeting. You ask for consideration of Extended School Year services for this next summer so that your child does not suffer the disaster you had last Fall after a Summer with no services. A school person denies any discussion, stating “We don’t have any budget for any services over the Summer.”
The school owes you Prior Written Notice – now, in the minutes of the IEP meeting or sent to you within the next 10 business days – making clear in writing that they are not going to provide Extended School Year services – and answering the questions in Prior Written Notice required by the Statute at 20 U.S.C. 1415(b)(3) and (c):
(1) describing in writing what you had asked for and that the school personnel at the IEP have refused;
(2) an explanation in writing of why they refused to take that action you requested;
(3) a written description of any options the school personnel at the IEP meeting considered and the written reasons why those other options were rejected;
(4) a written description of each evaluation procedure, test, record, or report that the school personnel used as a basis for their refusal;
(5) a written description of any other factors that are relevant to the school personnel at the IEP meeting’s refusal;
(6) a written statement that the parents have protections under the procedural safeguards of the IDEA and the way the parents can obtain a written copy of those procedural safeguards; and
(7) a written statement of sources that the parents can contact for assistance in understanding the provisions of this protection.
Without Prior Written Notice the parent would have to sit around, waiting to see what was going to happen.
So When Must Your School District Give You “Prior Written Notice”?
This requirement is not triggered just at an IEP meeting. Prior Written Notice must be given to the parents any time that the parent proposes something, that the school refuses, or that the school proposes any change.
The IDEA STATUTE has made clear for 30 years what is required.
Title 20 of the United States Code, at Section 1415(b)(3) and (c) requires that
- a reasonable time
- prior to a school proposing,
- or refusing,
- to initiate
- or change,
- the identification,
- evaluation,
- educational placement
- or provision of a Free, Appropriate Public Education (FAPE),
- the parent must be given a statement in writing of what the school is going to do, or more often, what they are refusing to do.
NOTE: You should recognize that what is described above is EVERY possible step in the process, from beginning to end.
Although it is called “Prior” Written Notice -- it is “Notice” that is given by the school district “Prior to the school district carrying out some action after a meeting,” not “Prior” to the meeting.
It is not issued “Prior” to the IDEA IEP meeting – it is sent within 10 school days AFTER the IEP meeting to the parent, to explain – clearly in writing – what the school proposed that the parent refused, what the parent proposed that the school refused, and each of the (7) elements listed above.
Many parents claim they did not get Prior Written Notice because it was not sent to them BEFORE the meeting. WRONG. It is written notice sent to the parent within 10 days AFTER the meeting -- to document what the school is going to do as a result of the meeting – and you are being told what they are going to do, PRIOR to the school carrying it out – so that you can take action if you need to.
Many school personnel claim they have given Prior Written Notice to the parents because they sent a note to the parents saying the IEP meeting will be next Tuesday.
That is clearly not the Prior Written Notice required by the Statute.
By the parents actually receiving Prior Written Notice, before the school puts the new IEP into action, the parent has time to protest in writing and stop the wrongful action before the school goes ahead.
If the school knows that the parent who will receive the notice is visually impaired or hearing impaired, or cannot read or cannot read in English, then the school district is required to provide the notice in a format that communicates to that parent what a typical reader would understand.
What is described above is taken from the IDEA Statute at 20 U.S.C. 1415(b)(3) and (c).
The IDEA Regulations that implement the requirements for Prior Written Notice by the public agency, and the content of that notice, is at 34 C.F.R. 300.503.
The Regulations – 34 C.F.R. 300.503 –
Prior Notice By The Public Agency and Content of Notice
(a) Notice. (1) Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency
(i) proposes to initiate, or change, the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or
(ii) Refuses to initiate, or change, the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.
(2) If the notice described under paragraph (a)(1) of this section relates to an action proposed by the public agency that also requires parental consent under Sec. 300.505, the agency may give notice at the same time it requests parent consent.
(b) Content of Notice. The notice required must include:
(1) A description of the action proposed or refused by the Agency;
(2) An explanation of why the agency proposes or refuses to take the action;
(3) A description of any other options that the agency considered and the reasons why those options were rejected;
(4) A description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;
(5) A description of any other factors that are 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 this part and, if this notice is not an initial referral for evaluation, 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 this part.
How Can You Use This To Help Your Child?
This is the most important procedural safeguard for any parent and child. Insist in writing after any meeting with your school district, and especially after an IEP meeting, that you receive Prior Written Notice.
This should also be used for any issue in dispute. Even outside an IEP meeting if you feel you need more evaluation, for example, you should ask for that in writing and remind the school district that they owe you “Prior Written Notice” in responding to your request. The term in the Statute and in the Regulations – “… or the provision of a Free Appropriate Public Education” – covers everything.
If your school does not issue you anything in writing at the meeting, or in response to your inquiry, then you should COMPLAIN no more than 10 days later, IN WRITING to your school superintendent.
Claim that you did not receive the Prior Written Notice you are entitled to and that you want a copy of your school district’s written policy on Prior Written Notice.
Indicate in your letter that you want a copy of the minutes of the school board meeting when your school board adopted their policy on Prior Written Notice.
If you have not gotten a satisfactory reply from your school within 10 days, then complain to your State Education Agency that your local school district has knowingly violated your right to Prior Written Notice after an IEP meeting or after some other request of yours and you want a written answer of what the State Education Agency is going to do about it.
You can also send a copy of your letter to the Assistant Secretary of Education, U.S. Department of Education, Washington, D.C. 20003.
Procedure really counts.
”Procedures,” such as Prior Written Notice, are as important as the “substance” of the IDEA.
Supreme Court Chief Justice Rehnquist, writing in Board of Education v. Rowley, 458 U.S. 176 (1982), the very first “special education” case ever heard by the U.S. Supreme Court, explained that a court’s inquiry is going to be into “procedure” and into “substance.”
Chief Justice Rehnquist indicated, at page 206 of the Rowley decision that the first inquiry by a Court is whether the parties have “complied with the procedures set forth in the Act.”
The Chief Justice said further, “When the elaborate and highly specific procedural safeguards embodied in 1415 [which is where Prior Written Notice is] are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see e.g. Sections 1415(a)-(d) [editor’s note – that contains Prior Written Notice] as it did upon the measurement of the resulting IEP against a substantive standard.”
Prior Written Notice needs to be a very important part of your advocacy strategies.
;D 
