Prior Written Notice (Notice of Action)
Posted by Dr. Elizabeth Keenan on 4/5/2021
If there is one thing that is constant in this ever-changing world in which we are all living, it’s the complexity of special education forms. There are so many, and they are often worded in ways that almost require a law degree to understand. Notice of Action, or Prior Written Notice form, is fairly complex, but the legal basis and rationale for the form are pretty simple—parents and guardians have a right to be informed of certain actions taken or refused regarding their child’s Individualized Education Program (IEP).
One of the core principles of the Individuals with Disabilities Education Act (IDEA) is the right of parents and guardians to be informed of and participate in decisions regarding their child’s IEP. This is where the “prior notice” piece comes in. Parents and guardians, including students with disabilities who are 18 and older, have the right to be notified in writing in a reasonable amount of time before a school district proposes to take certain actions with a student with a disability or refuses to take certain actions (34 CFR § 300.503). The actions could be things like proposing an evaluation, changing the amount of a particular service a student is receiving, changing the disability identification of the student, or informing a parent that the school district is refusing to do something the parent requested.
Section 300.503 of IDEA dictates what a school district must include when providing prior written notice. The District’s notice is their way of documenting that they complied with the law by informing the parent or guardian of the actions they proposed or refused. If you have received a Notice of Action from SSD before, the following items will be familiar to you. These explanations and descriptions make up the bulk of the form. Specifically, the notice must include the following:
- A description of the action proposed or refused by the agency;
- An explanation of why the agency proposes or refuses to take the action;
- A description of the other options that the IEP team considered and the reasons why those options were rejected;
- A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action; and
- A description of other factors that are relevant to the agency’s proposal or refusal.
In addition to the required statements listed above, the notice must also include a statement that parents or guardians of a child with a disability have protection under the procedural safeguards for parents or guardians and students that are included in the provisions of IDEA. The notice must also inform the parent or guardian where they can obtain a copy of the procedural safeguards and from whom they can get assistance in understanding them.
One interesting caveat to the prior written notice provision is that there is no requirement that the notice be provided on a dedicated form, such as SSD’s Notice of Action form. So long as all the required components are included in writing, any document could serve as prior written notice, including an IEP, or simply a handwritten letter from the district. It is SSD’s position that the use of a dedicated form is a best practice to ensure there is documentation for both the parent or guardian and the district that an action was proposed or refused.
Needs to be Understandable and Specific
The content requirements do contribute to the complexity of the form, but fortunately, there are other provisions in the law that seek to ensure that the notice is understandable to parents and guardians. IDEA requires that the notice be written in a way that would be understandable to the general public. We should not be using complicated, educational language or lots of acronyms that aren’t familiar to most people. In addition, the notice must be provided in the native language of the parent or guardian and orally or through other means, if their language is not a written language. The notice should also not be overly broad or require the parent or guardian to “read between the lines” to understand what is being proposed or refused. Though the notice need not re-state every word spoken by members of the IEP team, it is recommended that staff include pertinent dates and descriptions that are specific to the circumstances and the student.
Emphasis on the Prior
In terms of timing, the law is clear that written notice of proposed change or refusal needs to be issued a reasonable amount of time prior to the action going into effect. IDEA does not specify what a reasonable amount of time is, but the notice should be issued after the district has made the decision, and before the action goes into effect. This allows parents and guardians a reasonable amount of time to consider the action being proposed or refused and respond before the action goes into effect. Though the federal law does not speak to a timeline, the Missouri Department of Elementary and Secondary Special Education (DESE) has mandated that IEPs must be implemented 10 days after a Notice of Action has been sent.
DESE also allows parents or guardians to “waive” the 10 days if they wish the action to go into effect immediately. For instance, an IEP team might decide to increase a particular service on a student’s IEP. Prior written notice will be issued describing the action being proposed, but the student won’t start receiving the increase in services for 10 days—unless the parent “waives” that waiting period to allow the change in services to go into effect immediately.
Prior Written Notice or Notice of Action?
Throughout this blog post there has been some interchanging of the terms prior written notice and Notice of Action. In Missouri school districts, prior written notice has commonly been provided on a document called a Notice of Action (NOA). Recently, DESE has updated its terminology to be more closely aligned with the terminology in the IDEA statute and regulations. They are discontinuing the use of the title, Notice of Action. In response, SSD is renaming its Notice of Action form. It will now be titled, Prior Written Notice.
Where Can I Get More Information?
Below are three links to additional sources of information about prior written notice. The first link will take you to DESE’s website and a document called “Myth of the Month” that dispels some common misunderstandings around prior written notice. The second link is to a checklist created by DESE to help IEP teams determine when prior written notice should be issued. Last, is a link to DESE’s Parent’s Guide to Special Education in Missouri. This is a great resource for information about the entire special education process.