Lack of Prior Written Notice Not Always a Denial of FAPE

GirardEdwards_image05Author: Eric Stevens, Attorney at Law 

Summary:  The Office of Administrative Hearings (“OAH”) ruled that while a school district did not provide prior written notice that it would not conduct behavior and assistive technology (“AT”) assessments, this did not deny a student a FAPE.  Tehachapi Unified School District (2015) 116 LRP 256.

Facts: Student was eligible for special education as a child with autism.  Student moved to California from Alabama in January 2014.  Student enrolled in the District and several IEP meetings were convened during the end of the 2013/2014 school year to review Student’s existing IEP and discuss Student’s appropriate placement, assessments, and services.

Student’s Alabama IEP indicated that Student needed assistive technology (“AT”) devices and/or services, but no such devices or services were listed in the IEP.  However, Parents did not request an AT assessment at any of Student’s IEP meetings.

Similarly, Parents did not request a behavior assessment at the first of several IEP meetings, and only raised the issue at an IEP meeting about a month before the end of the school year.  The IEP team discussed the appropriateness of conducting a behavior assessment.  The IEP team concluded that a behavior assessment was inappropriate at that time because (1) the District should start with the least restrictive approach before moving to a full behavior assessment, (2) there was not enough time left in the school year to conduct the full behavior assessment, (3) Student was still in transition from Alabama to his new placement and needed more time to adjust, and (4) Student only had one serious behavior incident since enrolling at the District.

The District never provided prior written notice that it was not going to conduct an AT or behavior assessment, and Student’s IEP document did not explain either decision.

Student argued that he was denied a FAPE because the District failed to give Parents prior written notice that the District would not conduct AT or behavior assessments.

Outcome:  OAH held that the District was not required to provide prior written notice regarding an AT assessment because Parents never requested an assessment.  OAH also held that prior written notice should have been provided regarding behavior assessment after Parents first raised the issue with the IEP team.  In this case, the failure to provide prior written notice was a procedural violation of the IDEA, but it did not deny Student a FAPE.

Discussion:  The IDEA requires a local educational agency (“LEA”) to provide “prior written notice” whenever the LEA proposes or refuses to initiate or change “the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.”  20 U.S.C. § 1415(b)(3); 34 C.F.R. § 300.503(a); Educ. Code § 56500.4(a).  Prior written notice is required “to ensure that the parents of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to these decisions.”  C.H. v. Cape Henlopen School Dist. (3rd Cir. 2010) 606 F.3d 59, 70.

An appropriate prior written notice must contain, among other things, (1) a description of the action proposed or refused by the agency, (2) an explanation for the action, and (3) a description of the assessment procedure or report which is the basis of the action.  34 C.F.R. § 300.503(a); Ed. Code, § 56500.4(b).  An IEP document can serve as prior written notice if the IEP contains the required content.  71 Fed.Reg. 46691 (Aug. 14, 2006).

Since failure to issue a prior written notice is a procedural violation of the IDEA, a student has the burden to show that the procedural violation either (1) impeded the student’s right to a FAPE, (2) significantly impeded a parent or legal guardians’ opportunity to participate in the decision-making process regarding the provision of a FAPE, or (3) deprived the student of educational benefits.  20 U.S.C. § 1415(f)(3)(E); Ed. Code §§ 56505(f), (j).

In this case, the District was not required to issue prior written notice related to an AT assessment because Student’s Alabama IEP did not identify any AT devices or services, and Parents never requested an AT assessment.

Once Parents raised the issue of a behavior assessment, the District should have issued prior written notice regarding its decision not to assess Student.  The IEP document could have served this purpose, but it failed to contain the required content: it stated that a behavior assessment was not appropriate at the time, but did not explain the basis for the decision.

However, Student ultimately failed to show that this procedural violation constituted a denial of FAPE.  For one, Parents participated in the IEP meeting and the IEP team fully explained its decision to not conduct a behavior assessment at that time.  Since Parents were fully informed of the reasons for the denial, the failure to provide prior written notice did not significantly impede Parents’ opportunity to participate in the decision-making process.

Practice Tips:  When in doubt, serve parents with a prior written notice.  Procedural violations of the IDEA do not always translate into denials of FAPE, but LEAs should strive to comply with every requirement in the IDEA for the benefit of their students and themselves.

When a new student enrolls with an existing IEP, it pays to carefully review the document.  In this case the parents never requested an assistive technology (“AT”) assessment, but the student’s existing IEP from Alabama referred generally to a need for AT devices or services.  The LEA was not obligated to implement services which were not specified in IEP.  However, the LEA was lucky that OAH did not conclude that it should have conducted an AT assessment based on the Alabama IEP.  OAH could decide differently in a similar situation.


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