Friday, March 21, 2014

Procedural Safeguards - The Series Part V

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

This is the fifth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.

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 FAPEIDEASection 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  

In KA v Fulton County Sch Dist 741 F.3d 1195, 62 IDELR 161 (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.
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  1. According to what I am understanding this is the parent consent to attend the IEP meeting? Is the one where the parent or guardian gets to chose is he or she will be present, if they need to reschedule, and if they consent for the meeting to be held without them.

  2. Sorry Anon,

    I don't quite understand the question.


  3. Hello, my name is Patricia. In my opinion, the parents have to be notified in advance of any change in their child’s education status, and they have the right to choose if they will be present, if they need to reschedule, and if they consent for the meeting to be held without their presence.