Prior Written Notice

SmartStart: Procedural Safeguards -- Prior Written Notice

Overview | Key Points | Links | Additional Resources

This SmartStart is updated with references to the IDEA 2004 statute, the 2006 IDEA Part B regulations, and the 2008, 2016, and 2017 amendments to the Part B regulations.

Overview

A district must provide parents with prior written notice whenever it proposes or refuses "to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child."

Key Points

These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source.

PRIOR WRITTEN NOTICE -- TIMING

PWN must be sent at "a reasonable time" before the public agency proposes or refuses to initiate or change the identification, evaluation, educational placement, or the provision of FAPE. 34 CFR 300.503(a).
OSEP explained in Letter to Chandler, 59 IDELR 110 (OSEP 2012), that the notice must be provided so that parents have enough time to fully consider the change and respond to the action before it is implemented.
The notice must be sent after the team decision is made to propose or refuse a change, not before the team meeting. 71 Fed. Reg. 46,691 (2006) ("Providing prior written notice in advance of meetings could suggest, in some circumstances, that the public agency's proposal was improperly arrived at before the meeting and without parent input. Therefore, we are not changing Section 300.503 to require the prior written notice to be provided prior to an IEP Team meeting.").
It may be acceptable to use an IEP to provide PWN of a placement change, as long as the document contains all of the notice requirements set out in 34 CFR 300.503(b).

PRIOR WRITTEN NOTICE CONTENTS

PWN must include:
- A description of the action proposed or refused by the district.
- An explanation of why the district proposes or refuses to take the action.
- A description of each evaluation procedure, assessment, record, or report the district used as a basis for the proposed or refused action.
- A statement that the parents have protection under Part B's procedural safeguards and, if the notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained.
- Sources for parents to contact to obtain assistance in understanding the provisions of Part B.
- A description of other options that the IEP team considered and the reasons why those options were rejected.
- A description of other factors relevant to the district's proposal or refusal.

34 CFR 300.503(b). See also Letter to Atkins-Lieberman, 56 IDELR 141 (OSEP 2010) (PWN under 34 CFR 300.503 must include the student's category of eligibility when doing so is necessary to effect the purpose of notice); and Letter to Anonymous, 59 IDELR 14 (OSEP 2012) (Districts must provide PWN when proposing a functional behavioral assessment for the purpose of determining a child's eligibility and need for special education and related services.).

Providing parents with verbal notice as a substitute for written notice does not fulfill the PWN requirements of the IDEA, regardless of whether the verbal notice is substantively proper. Union Sch. Dist. v. Smith, 20 IDELR 987 (9th Cir. 1994), cert. denied, 109 LRP 36508, 513 U.S. 965 (1994) (A district never formally offered placement in its program for students with autism through PWN as required by the IDEA); and Pikes Peak Bd. of Coop. Educ. Servs., 9 ECLPR 15 (SEA CO 2011) (A district violated the IDEA procedurally by failing to provide PWN to reflect a change in the student's educational placement.).
PWN must be provided in a language that is understandable to the general public and also in the native language of the parent unless it is clearly not feasible to do so. 34 CFR 300.503(c). See, e.g., Adams County Sch. Dist., 55 IDELR 210 (SEA CO 2010) (The failure to supply a parent with PWNs in her native language denied FAPE to an English learner student with an undisclosed disability.).

NOTICE REQUIREMENT TRIGGERS

PWN is required even if the change is being proposed by the parent. Letter to Lieberman, 52 IDELR 18 (OSEP 2008).
If the proposed change in the educational program substantially or materially affects the composition of the educational program provided to the child, then a change in placement occurs, which triggers the notice requirement. Weil v. Board of Elem. & Secondary Educ., 17 IDELR 902 (5th Cir. 1991), cert. denied, 112 LRP 26051, 502 U.S. 910 (1991). See, e.g., Mesa County Valley Sch. Dist. 51, 68 IDELR 84 (SEA CO 2016) (A district failed to provide PWN to the parents of a student with autism when it changed his placement to a therapeutic day program.).
A temporary change in the educational placement of a child does not trigger the PWN requirement. Washoe County Sch. Dist., 55 IDELR 115 (SEA NV 2010) (A district did not have to provide PWN before pulling a student with autism from four violin classes while her instrument was being repaired.).
Generally, a district isn't required to provide PWN when it refuses to utilize a particular educational methodology requested by a parent. However, it's a different story when the current methodology is part of the provision of FAPE as outlined in the child's IEP. In Alaska Gateway School District, 116 LRP 15983 (SEA AK 03/29/16), the IEP listed "E-Therapy" as the location of the child's services. Because the parents asked that the services be provided in-person, the district was required to formally notify the parents of its decision to continue providing the therapy online.
Once a receiving district evaluates an interstate transfer student and the parents agree to implement a new IEP, it is no longer obligated to provide services comparable to those listed in the prior IEP. The decision to not include services in the new IEP that were part of the previous district's IEP does not trigger PWN. In Owen J. Roberts School District, 68 IDELR 86 (SEA PA 2016), the district's decision to remove a bus aide did not require it to provide PWN to the parents. Because the IEP the new district developed never included a bus aide for the student, its removal of the aide was not a change to the student's placement and did not alter his receipt of FAPE.
Technically, PWN isn't required when a parent merely seeks information about where to obtain an assessment rather than asking the district to conduct one. But best practice may be for the district to then determine whether the assessment is necessary for the child to receive FAPE. See, e.g., Lower Kuskokwim Sch. Dist., 116 LRP 48000 (SEA AK 11/11/16) (Where a grandmother asked the district where to get her grandson tested for fetal alcohol syndrome, PWN wasn't required since she wasn't asking the district to provide or fund the assessment).
PWN isn't required with respect to changes to the amount of information supplied in a student's progress reports. See, e.g., Grants Pass Sch. Dist., 119 LRP 31816 (SEA OR 04/03/19) (Because a 10th-grader's IEP was silent as to the amount of detail required in the student's written progress reports, an Oregon district did not have to give the parent PWN of its decision to provide more streamlined updates.).
A district must provide a parent PWN in response to a parent's request for an evaluation regardless of whether the district is screening or planning to screen the child to determine whether the child is suspected of having a disability. Letter to Mills, 74 IDELR 205 (OSEP 2019).

DETAIL OF NOTICE PROVIDED

PWN must provide sufficient detail to allow parents to participate in their child's educational services decisions in an informed way. See Smith v. Squillacote, 19 IDELR 265 (D.D.C. 1992) (A hearing officer erred in finding that the district's notice of a proposed change in placement violated the IDEA by failing to explain the reasons for the student's classification as "multiply handicapped" and by failing to adequately detail the rationale for rejecting two private school placement options); In re Student with a Disability, 115 LRP 24735 (SEA IL 05/15/15) (PWN of a manifestation determination review meeting must describe the purposes and potential consequences of the meeting); and Fern Ridge Sch. Dist. 28J, 16 IDELR 676 (SEA OR 1990) (The PWN was deficient because it required them to read between the lines.).
Circuit Courts are split on whether placement notice must identify a particular school location. The 4th U.S. Circuit Court of Appeals has held that the failure to identify the specific location of the student's services can amount to a denial of FAPE. A.K. v. Alexandria City Sch. Bd., 47 IDELR 245 (4th Cir. 2007), reh'g denied, 107 LRP 42702, 497 F.3d 409 (4th Cir. 2007), cert. denied, 110 LRP 19412, 128 S. Ct. 1123 (2008) (holding that a district's proposal to place a teenager in an unspecified private day school was inappropriate as it did not permit the student's parents to effectively evaluate whether the placement would meet the student's needs). However, the 2d U.S. Circuit Court of Appeals held that a specific description of the educational program, sans location, provided sufficient notice to the parents. T.Y. and K.Y. v. New York City Dep't of Educ., Region 4, 53 IDELR 69 (2d Cir. 2009), cert. denied, 110 LRP 28696, 130 S. Ct. 3277 (2010) (holding that a New York district satisfied the IDEA's notice provision when it offered generally to place the child in a 6:1+1 class in a school for students with disabilities). See also SmartStart: Procedural Safeguards -- Changes in Placement.

RECEIPT OF NOTICE ACKNOWLEDGEMENT

The IDEA does not require that districts ask parents to acknowledge the receipt of PWN. However, given the potential ramifications for not sending notice, districts should consider how to document the fact that notice was sent. See, e.g., Board of Educ. of the N. Rockland Cent. Sch. Dist. v. C.M., 72 IDELR 172 (2d Cir. 2018, unpublished) (Documentation showing that the mother of a student with emotional and behavioral difficulties received a copy of her procedural safeguards on Aug. 28, 2012, helped a New York district prove that the parent's January 2015 due process complaint was untimely); and Columbus City Sch. Dist., 114 LRP 52959 (SEA OH 10/17/14) (noting that the parents' signature on the student's IEP, coupled with the checkmark next to a box stating that the parents received a copy of procedural safeguards, showed that the district adhered to the IDEA's notice requirements).

FAILURE TO PROVIDE NOTICE

Not all procedural errors give rise to the denial of FAPE. If the parents have not been denied the opportunity for meaningful participation and the student has not suffered any loss of educational opportunity, then the student may have received FAPE regardless of procedural violations. Tennessee Dep't of Mental Health & Mental Retardation v. Paul B., 24 IDELR 452 (6th Cir. 1996) (A District Court erred when it held that the state's failure to give the parent notice of the stay-put rule required it to pay for a residential placement); Hazen v. South Kingstown Sch. Dep't, 56 IDELR 16 (D.R.I. 2011) (A district did not impede the participation of the parents of a 9-year-old or deny the child FAPE when it failed to notify the parents of an IEP meeting); Marcus I. v. Department of Educ., State of Hawaii, 63 IDELR 245 (9th Cir. 2014, unpublished) (Even if the Hawaii Department of Education's offer to place a student with autism "in the public high school in his home community" lacked specificity, the circumstances surrounding the IEP team's discussions were sufficient to put the parent on notice of the proposed placement); W.K. v. Harrison Sch. Dist., 61 IDELR 123 (8th Cir. 2013, unpublished), reh'g en banc denied, 113 LRP 30277 (8th Cir. 07/23/13) (Despite its failure to provide proper notice of the issues to be discussed at an emergency IEP meeting, a district did not have to reimburse the parents for a private school placement); M.G. v. Williamson County Schs., 71 IDELR 102 (6th Cir. 2018, unpublished) (because the district's failure to provide PWN in response to three evaluation requests did not result in a loss of educational opportunities or impede the parent's participation in the IEP process, the 6th Circuit held that the procedural errors were harmless.); and N.B. v. Demopolis City Bd. of Educ., 60 IDELR 66 (S.D. Ala. 2012) (A district's alleged failure to provide notice of an upcoming IEP meeting was harmless.).
A district's failure to provide PWN within a reasonable time before it implements a change constitutes a procedural violation that may result in a denial of FAPE. See El Paso County Sch. Dist. 2, 113 LRP 44602 (SEA CO 08/15/13) (Because it waited three weeks to formally notify a parent of its agreement to change her child's placement, a district engaged in a technical violation of the IDEA.).

USING THE IEP AS THE NOTICE

It may be acceptable to use an IEP to provide PWN of a placement change as long as the document contains all of the notice requirements set out in 34 CFR 300.503(a); and 71 Fed. Reg. 46,691 (2006). See El Paso County Sch. Dist. 2, 113 LRP 44602 (SEA CO 08/15/13) (An IEP met notice requirements but wasn't provided within a reasonable time before it implemented the proposed change.). See also SmartStart: IEPs -- Parental Participation (Generally).

IMPACT OF NOTICE ON IEP REQUIREMENTS

PWN is a proposal for program implementation that is not binding on the district, at least according to the 1st U.S. Circuit Court of Appeals. Districts in Maine, Massachusetts, New Hampshire, and Rhode Island generally can recommend placements and services in the notice without fear that a court will interpret them as being part of the IEP. In Ms. M. v. Falmouth School Department, 69 IDELR 86 (1st Cir. 2017), cert denied, 117 LRP 42127, 138 S. Ct. 128 (2017), although the PWN proposed the use of the SPIRE reading program, the final IEP only stated that the district would provide "specially designed instruction" in reading. The PWN's reference to a specific methodology did not alter the terms of the student's IEP.

Links

Additional Resources

Additional resources on this topic are available for purchase from LRP Publications:

Prior Written Notice Under the IDEA: Who, When and How? by Andrew Tatgenhorst, Esq.
Make Sure You're in the Know: The Latest on IDEA Procedural Safeguards presented by Art Cernosia, Esq.
What Districts Need to Know About IDEA Parental Rights: A Legal Overview by John W. Norlin, Esq.

Please share your experience and expertise. Forward any suggested additions or changes to this or other SmartStarts to SmartStarteditor@lrp.com.

Last updated: September 24, 2019

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