Guide to Prior Written Notice under IDEA

If you have ever attended a Thrun special education training, you likely heard us emphasize the importance of prior written notice (PWN). Not only is it an IDEA requirement, a PWN is the best vehicle for evidencing the legality of an IEP or other special education decisions. MDE’s new guidance document Understanding the Requirements of Prior Written Notice provides information on when and how PWNs should be used.

PWN is notice that a school official must provide to a parent before any change to or implementation of a student’s IEP. It is also required whenever a school proposes or refuses to change the identification, evaluation, or educational placement of a student eligible under the IDEA.

It is important to remember that this notice is required before the change or implementation being documented occurs. For example, an annual IEP delivered with a PWN should not indicate implementation on the day it is provided to the parent (or even worse, the date of the meeting). Parents must have time to review the PWN and exercise their procedural safeguards if they disagree with the offer.

MDE’s guidance reminds special education personnel of specific PWN deadlines. For instance, if a parent submits a written request for an initial special education evaluation, school personnel must respond to parent’s request with a PWN agreeing or refusing to evaluate within 10 school days. Alternatively, if a student with an IEP faces a disciplinary change of placement (removal for 10 consecutive school days or 10 cumulative school days where a pattern of behavior has been identified), school personnel must deliver a PWN notifying parents on the day the placement decision is made.

In addition to providing a PWN when an IEP is drafted, PWNs are also required in the following circumstances:

• Proposal or refusal to evaluate, including reevaluation;
• An eligibility determination;
• Granting or refusing to provide a publicly funded, independent educational evaluation;
• Any change to educational placement;
• Graduation from high school with a diploma; or
• Exiting school due to exceeding the age of eligibility.

A PWN must include a description of the action proposed or refused by the school; an explanation of why the action is proposed or refused; a description of each evaluation, assessment, record, or report the school used as a basis for the proposed or refused action; a statement reminding parents of their procedural safeguards and how to obtain a copy of them; resources for parents; a description of other options the IEP Team considered and why those options were rejected; and a description of any other factors relevant to the school’s proposal or refusal.

Although it is tempting to regard the PWN as a nuisance that may be completed quickly at the end of an IEP meeting, doing so is a mistake. The PWN is the school’s document, and it will be a critical component to supporting school officials’ decisions if those decisions are later challenged.

Tips for Helpful and Legally Compliant PWNs

To support clear communication and compliance, when preparing a PWN, school officials should:

• Use plain language that anyone can understand;
• Document parent requests and, if those requests were not granted, the reasons why;
• List options considered and why those options were or were not chosen;
• If a parent refused to participate or provided alternative input (other than attending a meeting), document why, how input was obtained, and the efforts school personnel made to include the parent; and
• Prepare the PWN after the IEP meeting and before implementation of the proposal. This practice avoid claims of predetermination.

MDE’s guidance document provides a thorough reference table for supporting PWN documentation. The table includes columns for “purpose,” “guiding questions,” and “documentation tips” for each PWN component. For example, if the IEP Team refused to increase the number or duration of a student’s occupational therapy sessions, MDE suggests using specific language to support this decision.

If you have questions regarding PWNs, please contact a Thrun special education attorney.