heather edwards

The Power of Prior Wri,en No/ce: When, Why, and How to Use It

January 17, 2014

Presented by Heather Edwards, Girard & Edwards and Amy Andersen, El Dorado County Charter SELPA 1


ACSA Every Child Counts Symposium January 17, 2014

Presenters: Heather M. Edwards, A,orney at Law

Amy Andersen, Director, El Dorado County Charter SELPA

IDEA Procedural Safeguards •  IDEA establishes: – Abstract goals – requiring districts to provide each child with a disability with a “free appropriate public educa/on”

– Detailed process for achieving these goals – /melines, assessment, formula/on of IEPs, and dispute resolu/on processes all specified in detail


January 17, 2014


Purpose of PWN

•  Provides comprehensive documenta/on of proposed and refused ac/ons made

•  Ensures LEA and parents are “on the same page” about a child’s educa/onal program

•  Provides parents an opportunity to voice any concerns or sugges/ons

•  Provide sufficient informa/on to ensure that parent understands the ra/onale behind an LEA’s decision making regarding a par/cular proposed or refused ac/on

Purpose of PWN •  Ensures that informed parental consent is obtained, as

necessary •  Assists parent in determining basis for any disagreement(s)

with proposed and/or refused ac/ons addressed in the PWN and whether to seek resolu/on of any dispute through local dispute resolu/on procedures, a state complaint, media/on or a due process hearing.

•  The U.S. Department of Educa/on (USED) Office of Special Educa/on Programs (OSEP) opined that the purpose for providing PWN is: –  to ensure that a parent understands the special educa/on and related services which an LEA has proposed or refused to provide to a student. If a parent does not understand the services being proposed, it follows that the parent could not have agreed to the proposed services.


January 17, 2014


Prior Wri,en No/ce (“PWN”)

•  Vital component of procedural safeguards that schools make available to special educa/on students and their parents.

•  Providing /mely and correct PWN allows a clear record of: – Decisions that have been made – but not yet acted upon

– The basis for those decisions – Ac/ons that will or will not be taken

Poten/al Procedural Viola/on

•  Not all procedural errors give rise to the denial of FAPE.

•  If parents have not been denied the opportunity for meaningful par/cipa/on and the student has not suffered any loss of educa/onal opportunity, then student may have received FAPE regardless of procedural viola/ons.


January 17, 2014


When Should PWN Be Provided?

Whenever a school PROPOSES or REFUSES to: 1.  Ini/ate or change iden1fica1on of a student. 2.  Ini/ate or change evalua1on of a student. 3.  Ini/ate or change educa1onal placement of a

student. 4.  Ini/ate or change the provision of free,

appropriate public educa1on to a student.

34 C.F.R. § 300.503(a).

When Should PWN Be Provided?

PWN must be provided within a reasonable 1me before any of these 4 ac/ons.

34 C.F.R. § 300.503(a).

“We do not believe that it is necessary to subs/tute a specific /meline to clarify what is meant by the requirement that the no/ce be provided within a reasonable period of /me, because we are not aware of significant problems in the /ming of prior wri,en no/ces. In addi/on, prior wri,en no/ce is provided in a wide variety of circumstances for which any one /meline would be too rigid and, in many cases, might prove unworkable.”

Analysis of Comments and Changes (71 Fed.Reg. 46691 (Aug. 14, 2006).)


January 17, 2014


Best Prac/ce

•  Provide PWN at conclusion of IEP mee/ng, or •  Send it to parents aier the mee/ng with a copy of the IEP.

What Circumstances Require PWN? •  This list should not be considered as an exhaus/ve

lis/ng, but rather used as a guide that addresses the most common circumstances that a local educa/onal agency may encounter regarding the provision of PWN. •  Iden1fica1on – Referral for ini/al evalua/on – Change in eligibility category •  Evalua1on – Consent for ini/al evalua/on or reevalua/on – Refusal to conduct an evalua/on, including an independent educa/onal evalua/on (“IEE”)


January 17, 2014


What Circumstances Require PWN?

•  Educa1onal Placement –  Ini/al placement into special educa/on – Any change in educa/onal placement, or refusal to to so – Gradua/on with regular diploma – Disciplinary removal for more than 10 consecu/ve school days or series of removals – Disciplinary removal to an interim alterna/ve educa/onal placement for not more than 45 school days

What Circumstances Require PWN?

•  Provision of FAPE –  Generally, this means any change to the type, amount, or loca/on of special educa/on or related service being provided to child would trigger PWN requirement.

–  Dele/on or addi/on of a related service (or refusal to do so)

–  Change in annual goals –  Changes in accommoda/ons or modifica/ons –  Increase or decrease in special educa/on services or related services (or refusal to do so)

–  How student will par/cipate in statewide and district wide assessments

–  Revoca1on of consent (34 C.F.R. § 300.300(b)(4)).


January 17, 2014


PWN Required Even if Parent Agrees to Changes in an IEP Team Mee/ng

•  If during an an IEP mee/ng, the team, including parent, agrees to a change in the child’s services, the LEA must provide wri,en no/ce of such change.

•  Providing such no/ce following an IEP team mee/ng allows the parent /me to fully consider the change and determine if he/she has addi/onal sugges/ons, concerns, or ques/ons.

PWN Not Limited to Changes with which Parent is in Disagreement

•  Nothing in IDEA indicates that the PWN requirement is related to a parent’s aktude toward any changes proposed or refused by LEA.

•  PWN provides clarity. You might sit in a mee/ng and think you agree on something. Then you put it in wri/ng, and disagreements may surface aier all.


January 17, 2014


•  Parents oien agree to certain proposed and/or refused ac/ons, but then change their mind later.

•  The fact that a parent does not make an issue out of a par/cular decision during an IEP mee/ng does not necessarily mean that the decision will not at some point in the future be the basis for a state complaint, media/on, and/or a due process hearing.

•  A well wri,en PWN is great documenta/on that parents were fully aware of the ra/onale behind any proposed or refused ac/on.

Is PWN Required Before Implemen/ng a Proposed IEP?

•  YES •  Wri,en no/ce shall be given to the parent a reasonable /me before it implements a change the provision of FAPE

•  The no/ce allows the parents /me to seek resolu/on if they disagree with the school’s decision.


January 17, 2014


Is PWN Required Regarding a Change Requested by a Parent?

•  YES. •  Regardless of how a change is suggested, it is the responsibility of the LEA to make a final decision and actually implement any determined change.

Is PWN Required Before Conduc/ng an IEP Mee/ng?

•  NO. •  The use of the word “propose” may be confusing because it

could be interpreted to mean that PWN is required before the school considers or suggests or thinks about proposing an ac/on.

•  But remember that the purpose of PWN is to document decisions made by the LEA and is intended to give parents adequate no/ce before the decision is implemented.

•  Generally, no proposal exists un/l the IEP team has met and made its decisions.

•  However, a mee/ng no/ce must be sent prior to the mee/ng.

•  Make sure that staff and parents understand the dis/nc/on between a mee/ng no/ce and prior wri,en no/ce.


January 17, 2014


Don’t Replace IEP Mee/ngs with PWN

•  When a parent makes a specific request (e.g., increased speech services), schedule an IEP mee/ng to discuss to avoid claims of predetermina/on.

Is PWN Required When Student Changes Schools?

•  PWN not required where a child is simply moving from elementary school to middle school as part of the normal progression that all students follow, and where the child's program will be substan/ally and materially similar to their elementary school program.

•  However, PWN may be required if, for example, the child would not be a,ending the middle school he or she would normally a,end, pursuant to an IEP team decision.


January 17, 2014


PWN May Be Necessary When Changing Loca/on of Placement

•  Change in loca/on due to school closure may give rise to a “change in placement” where least restric/ve environment considera/ons are at issue.

•  Even if same services are being implemented at a new school, could be viewed as different placement if opportunity for interac/on with nondisabled children are affected.

Series of IEP Mee/ngs •  LEAs oien find themselves having to convene more than one

IEP mee/ng to fully develop, review, and/or revise an IEP •  The regula/ons do not require that PWN be provided aier

every IEP mee/ng in a series of mee/ngs while the IEP is s/ll under development, no final IEP is being proposed and parental consent is not being sought.

•  Providing PWN in such a piecemeal fashion to simply document the discussions, agreements, disagreements, proposed and refused ac/ons that occurred during each of the mee/ngs is not required by state and/or federal special educa/on laws and regula/ons.

•  The IEP development process is a fluid process, wherein previously discussed and seemingly agreed upon items may be revisited and altered.


January 17, 2014


Is PWN Required when a School Conducts a Screening with all Students in a School/Grade/Class?

•  If screening includes basic tests that are administered to all students, or procedures that are used with all students in a school, grade, or class, PWN is not required.

What steps should a school district take when it receives a parents wri,en revoca/on of consent?

•  School districts must provide the parent with prior wri,en no/ce in accordance with 34 C.F.R. 300.503 before ceasing the provision of special educa/on and related services.

•  Must be provided within a reasonable 1me before the district ceases services.

•  U.S. Dept. of Ed. expects districts to“promptly” respond to receipt of wri,en revoca/on of consent by providing PWN.

•  This provides parents the necessary informa/on and /me to fully consider the change and determine if they have any addi/onal ques/ons or concerns regarding the discon/nua/on of services.


January 17, 2014


What steps should a school district take when it receives a parent’s wri,en revoca/on of consent?

•  A school district may, but is not required to, offer to meet with the parents to discuss their concerns.

•  However, any addi/onal mee/ngs must be voluntary and cannot delay or deny the discon/nua/on of special educa/on services.

•  A school district may inquire as to why a parent is revoking consent, but may not require the parent to provide an explana/on.

•  Remember: school districts are not required to “convince” parents to accept special educa/on services that are offered, nor to “dissuade” parents from revoking consent.

Best Prac/ce Tip

•  If you are ques/oning whether a specific situa/on warrants the need for PWN, it is recommended that you prepare a properly comprised PWN to address the issue.

•  Be,er to have provided the no/ce and find that it was not required than to have not provided the no/ce and find that it was required.


January 17, 2014


What Content Should the Prior Wri,en No/ce Include?

•  7 Items PWN Must Contain 1.  Descrip/on of ac/on proposed or refused by school 2.  Explana/on of why school proposed or refused to take

the ac/on 3.  Descrip/on of each evalua/on procedure, assessment,

record, or report the agency used as a basis for the proposed or refused ac/on

4.  Statement that parents of the child with a disability have protec/on under IDEA and, if this no/ce is not an ini/al referral for evalua/on, the means by which a copy of a descrip/on of procedural safeguards can be obtained. 34 C.F.R. § 300.503(b).

What Content Should the Prior Wri,en No/ce Include?

• 7 Items PWN Must Contain 5.  Sources for parents to contact to obtain

assistance in understanding the provisions of IDEA

6.  Descrip/on of any other op/ons the IEP team considered and the reasons why those op/ons were rejected

7.  Descrip/on of the other factors relevant to the school’s proposal or refusal

34 C.F.R. § 300.503(b).


January 17, 2014


Means of Providing PWN

•  Except for requiring that no/ce be in wri/ng, neither federal nor state special educa/on regula/ons specify the format in which PWN must be provided.

•  Any of the following formats are permissible: –  Formal le,er on le,erhead –  Fill in the blank form; – Online system generated; –  E-‐mail; or – Use of the IEP.

PWN Can Include the IEP Document Itself.

•  “There is nothing in the [IDEA] or these regula/ons that would prohibit a public agency from using the IEP as part of the prior wri,en no/ce so long as the document(s) the parent receives meet all the requirements in Sec. 300.503.”

Analysis of Comments and Changes (71 Fed.Reg. 46691 (Aug. 14, 2006).)

•  Ask yourself…. Does the child’s IEP include all 7 required components of PWN?

•  If not, you should provide parents a PWN along with a copy of the IEP to ensure all components are covered.


January 17, 2014


Using Electronic IEP Forms

•  If using an online program (such as SEIS) to prepare PWN do not let the prescribed allowance of characters limit the content and/or length of the document.

•  Ensure that the program allows sufficient room for capturing all of what needs to be wri,en into the no/ce.

•  Otherwise, use a supplementary document to accompany the online document or complete the en/re document separately.

Who May Develop PWN? •  Neither federal nor state special educa/on regula/ons require that PWN indicate who prepared it and/or who provided it to the parent.

•  PWN may be prepared and provided by –  Case manager –  IEP team chairperson; or –  LEA representa/ve

•  Best prac-ce: should be someone who has “firsthand” knowledge of what was discussed during the decision-‐making process associated with any proposed and/ or refused ac/ons.


January 17, 2014


Parental Disagreement with PWN

•  PWN is completed by the LEA, not the parents. •  It is based on the informa/on which was provided by the parent, along with other members of the team, orally and/or wri,en, during the decisionmaking processes associated with the evalua/on, iden/fica/on, placement, and provision of FAPE for their child.

•  Parents cannot require an LEA to add, subtract, or otherwise include informa/on in PWN if the LEA does not deem it necessary.

Single PWN for Mul/ple Ac/ons Allowed

•  There is nothing in the federal and or state special educa/on laws and regula/ons which would prohibit an LEA from including all of its proposed and refused ac/ons into a single prior wri,en no/ce, as long as there is a descrip/on of each ac/on that was proposed or refused.

•  The descrip/on provided should be wri,en as a statement that is factually grounded or informa/ve, rather than being wri,en in a vague, generic, and norma/ve format.


January 17, 2014


PWN Must Be Understandable

•  PWN must be wri,en in language understandable to the general public •  Provided in na/ve language or other mode of communica/on used by parents, unless clearly not feasible to do so. –  If na/ve language/mode of communica/on is not wri,en language, school must take steps to translate PWN orally or by other means ensuring parent understands the no/ce. – School must document steps taken to ensure parent understands no/ce.

34 C.F.R. § 300.503(c).

PWN Must be in WRITING. •  Providing parents with verbal no/ce as a subs/tute for

wri,en no/ce does not fulfill the PWN requirements of the IDEA, regardless of whether the verbal no/ce is substan/vely proper

•  Example: Parent, believing child needed more interac/on with typical peers, requested a less restric/ve placement.

•  IEP team agreed to place student in general educa/on class for several weeks for half of the day on a trial basis.

•  Acceding to parent's wishes, district agreed not to record the change in the IEP, but to refer to it as "an assessment period" aier which the team would reconvene. Then parent filed complaint claiming that the district commi,ed procedural viola/ons.


January 17, 2014


PWN Must be in WRITING.

•  IDEA does not carve out different categories of placement, some of which must appear in an IEP, and some which need not. "Whether a new placement is deemed 'temporary,' 'diagnos/c' or an 'assessment period,' under the law, it must be reflected in the IEP,”.

•  District violated IDEA by failing to note the change in the document, although it did so at the parent's request

•  PWN requirement is unequivocal and recognizes no excep/ons for 'personally' no/fying parents of the proposed change.”

Pikes Peak Bd. of Coopera-ve Educ. Services, 9 ECLPR 15 (SEA CO 2011).

PWN S/ll Required for Amendments to IEPs

•  Rather Than Redraiing En/re IEP, A Wri,en Document May Be Developed to Amend or Modify a Child’s Current IEP, Aier the Annual IEP Team Mee/ng for a School Year [34 CFR § 300.324(a)(4)]. •  Amendment May Be Made by Either: –  En/re IEP Team at IEP Mee/ng, or –  Parent and District Agree Not Necessary to Convene an IEP Mee/ng to Make Such Changes

•  PWN s1ll required for amendments to IEPs whenever any of the 4 ac/ons are taken.

•  IEP amendment must contain required 7 points of informa/on.


January 17, 2014


Tips for Crea/ng Compliant PWN

• Avoid using phrases such as “N/A” or “see above” – There may be instances in which no other op/ons were considered, if so, avoid using the phrases “no other op/ons considered,” “none,” or “not applicable” without an explana/on.

•  Example: There were no other factors, outside of those listed above, that were considered by the IEP team. Neither the parents, nor any LEA personnel par-cipa-ng in the mee-ng, presented any other factors that needed to be considered.


•  Ensure each item of informa/on is understandable on its own merit. – Don’t rely on another form or document to convey informa/on that PWN must communicate (e.g., “see Psych Evalua/on”

•  Avoid abbrevia/ons and educa/onal jargon •  Review it with parent if possible •  Be sure PWN is dated (and that date is correct) •  Acknowledge that you considered parent’s requests


January 17, 2014



•  Document any oral or wri,en informa/on provided by parent from a private provider, –  Iden/fy the provider by name –  Ensure that the wri,en documenta/on can also be easily iden/fied, such as, the type of informa/on being provided (i.e., psychological evalua/on, le,er from physician, etc.)

–  Date the document was prepared and/or provided •  Example: The IEP team considered a psychological evalua-on

from Dr. Noe Itall, which was completed on January 12, 2013. The evalua-on was provided by the parents during an IEP mee-ng convened on January 23, 2013.


•  The IDEA does not require that schools ask parents to acknowledge the receipt of prior wri,en no/ce. – However, given poten/al ramifica/ons for not sending no/ce, schools should consider how to document the fact that no/ce was sent.

•  Clearly ar/culate what your LEA is proposing or refusing to do – Use asser/ve language when describing LEA’s ac/ons

– The District “proposes” or “refuses” rather than the District “feels” or “believes”


January 17, 2014


Tips for Crea/ng Compliant PWN •  Avoid “cukng and pas/ng” from previously completed PWN

documents, especially when it involves another child, and have someone “proofread” prior to issuing it to parents to ensure that school avoids common mistakes, –  Referring to a child by the wrong gender/name, – Misspelling names, –  Entering other “incorrect” informa/on.

•  Such errors may not result in a denial of FAPE, but could give parents impression that IEP team either does not know their child or that it did not base its proposed or refused ac/ons on informa/on relevant to their child

•  Addi/onally, it could give impression that school does not value the importance of the PWN and could also compromise privacy.

Sample PWNs

•  Ini/al Assessment •  Triennial Assessment •  Independent Educa/onal Evalua/on •  Denial of Requested Service •  Gradua/on •  Revoca/on of Consent for Special Educa/on


January 17, 2014


Presenter Contact Informa/on

Heather M. Edwards GIRARD & EDWARDS Tel: (916) 706-‐1255 Fax: (916) 706-‐2672 Email: [email protected]

Amy Andersen El Dorado County Charter SELPA Tel: (530) 295-‐2453 Fax: (530) 676-‐4337 E-‐mail: [email protected]

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