Tuesday, April 22, 2008

Procedural Safeguards - Part V

We finish the series on the IDEA procedural safeguards today. The four methods of dispute resolution were discussed in great detail in a previous series of posts; the current series deals with the remaining procedural safeguards. The United States Supreme Court has frequently noted the importance of the IDEA procedural safeguards, finding them to be at the heart of the fairness of the process, the great equalizer. Today we look at how the IDEA'04 changes and the latest federal regulations impact the requirement of prior written notice.
A school district must provide prior written notice to the parents whenever it proposes to, or refuses to, initiate or change the: identification, evaluation, placement, or FAPE. IDEA Section 615(b)(3). See 34 CFR Section 300.503(a). The notice must contain the following: a description of the action; an explanation of why the district proposes or refuses the action; a description of each evaluation procedure, assessment, record or report relied upon; a statement that the parents have protections under the procedural safeguards; sources for the parents to contact to obtain assistance; a description of other options considered and why they were rejected; and a description of the factors that are relevant to the district’s proposal or refusal. IDEA Section 615(c)(1). See 34 CFR Section 300.503(b).

“Prior” written notice is an unfortunate choice of words. This does not mean that the notice must be given before the decision is made. Indeed, OSEP has pointed out that the notice must be given a reasonable amount of time before the school district implements the proposal, or refusal, described in the notice. The proposal triggers an obligation to convene an IEP team meeting, but providing prior written notice before the meeting could suggest that the district’s action was made without parent input and participation. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).

OSEP has published a model form for prior written notice consistent with current statutory and regulatory requirements. The model form is available on the website: http://idea.ed.gov/.

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