Michelle H. Basi Celynda L. Brasher

1. Notices of Action: Not Just a Form – How to Use the NOA to Reduce & Defend ComplaintsMO-CASE Conference 2019 Michelle H. Basi Celynda L. Brasher September 22, 2019

2. Legal Requirement • Prior written notice before the district 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 to the child 34 C.F.R. § 300.503

4. Purpose “We find that this formal requirement has an important purpose that is not merely technical, and we therefore believe it should be enforced rigorously. The requirement of a formal, written offer creates a clear record that will do much to eliminate troublesome factual disputes many years later about when placements were offered, what placements were offered and what additional educational assistance was offered to supplement a placement, if any.” Union Sch. Dist. v. Smith, 15 F.3d 1519 (9th Cir. 1994)

5. Purpose • Ensures informed parental consent is obtained • Provides parents with the opportunity to voice concerns prior to action being taken • Beyond just a form: • Comprehensive documentation of actions requested, taken, and refused • Can be evidence to defend against claims of predetermination, failure to individualize, failure to allow meaningful parental participation, etc.

6. Basic Requirements • Must be in writing • No required delivery method – but make sure parents receive it • Must be provided no less than 10 days prior to the proposed action • Except disciplinary change of placement • Agreement to waive with parents • Language : • Language understandable to the general public • Translated if necessary

7. Elements • Description of the action proposed or refused by the agency • Description of each action proposed or refused • Don’t forget requests made by parents during meetings

8. Elements • An explanation of why the agency proposes or refuses to take action • Describe the data points and other considerations that went into the decision • Use factual statements, not just conclusions

9. Elements • A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action • Be specific – identify which evaluation reports and assessments were considered by the team • Don’t forget information provided by parents

10. Elements • A statement that the parents of a child with a disability have protection under the procedural safeguards of this parent and, if this 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 this part;

11. Elements

12. Elements • A description of other options that the IEP Team considered and the reasons why those options were rejected • Should almost always have other options considered – or explain why no other options considered • When refusing a request by a parent, specifically state how the team considered the request by the parent and why that request was rejected

13. Elements • A description of other factors that are relevant to the agency’s proposal or refusal • This is the place to include other factors

14. Cautions • Provide NOA even when agreeing with parents’ request • NOA required when refusing to meet at parents’ request • Don’t forget requests for related services, changes in placement, etc. made by parents during IEP meeting • Careful with the cut & paste! • Every NOA should not sound the same • Watch out for discrepancies between the IEP and NOA

15. Presented by: Michelle H. Basi Celynda L. Brasher Tueth Keeney Cooper Mohan & Jackstadt P.C. Main: 314.880.3600 Main Fax: 314.880.3601 email: mbasi@tuethkeeney.com cbrasher@tuethkeeney.com