Special Education Law Blog: "Prior Written Notice" - Another Badly Named Special Education Law Concept!

Seal of the United States Court of Appeals for the Eleventh Circuit. (Photo credit: Wikipedia)

Many of the concepts that we use in special education law are mislabeled. Why is that? Don't even get me started on the different meanings of the term "placement!" As an Eleventh Circuit decision from last week shows prior written notice is another minefield.

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 may trigger 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/.

But in KA v Fulton County Sch Dist 113 LRP 2083 (11th Cir. 12/20/2013) the parents argued that the school district should have filed for a due process hearing when the parents refused to consent to changes to the student's educational program at an IEP team meeting. IDEA does not require that, however. As the Eleventh Circuit pointed out in its decision, a school district must provide prior written notice, and in this case it did so even if the notice was not up to snuff. The parents' remedy was to file for due process or invoke other procedural safeguards after receiving the prior written notice. Because there are so few published circuit court of appeal decisions, you should read it, and you can do so here.