Documenting Decisions on the DEC 5 Prior Written Notice Documenting Decisions on the DEC 5 September 2013

Prior Written Notice (DEC 5) Who? What? Where? When? Why? How?

What is the Purpose? Written notice to parents: Explains the public agency’s proposal or refusal to carry out an action or actions that affect their child. Allows the parents time to seek resolution if they disagree with the school’s decision.

When is a DEC 5 given? A reasonable time before the LEA refuses to change: A reasonable time before the LEA proposes to change: IDENTIFICATION EVALUATION EDUCATIONAL PLACEMENT, or Provision of a FAPE to the child. IDENTIFICATION EVALUATION EDUCATIONAL PLACEMENT, or Provision of a FAPE to the child.

When is a DEC 5 given? After the decision is made, but Prior to implementing the action(s).

Evaluation Initial Referral Process IEP Team proposes or refuses to: Evaluate the child, Administer a particular assessment, Collect more data, Determine eligibility based on existing data.

EVALUATION Purpose of the DEC 5 is to explain to the parents the decisions made about the evaluation. What additional information is needed and why? If the parent wants additional assessments and the IEP Team disagrees, an explanation of the reason(s) they are refused. .

IDENTIFICATION Eligibility Determination IEP Team proposes or refuses to: Identify a child as eligible for special education services in one or more of the 14 disability categories, or IEP Team determines that a child: No longer meets eligibility criteria for one or more of the disability categories.

REEVALUATION IEP Team proposes to: IEP Team refuses to: Reevaluation Process IEP Team proposes to: Gather additional data, or Determine continuing eligibility and child's educational needs based on existing data; or IEP Team refuses to: Gather additional data/assessments, or Continue eligibility based on existing data.

EDUCATIONAL PLACEMENT IEP Team proposes or refuses to change: Child's participation with non-disabled peers. Child's special education and related services. Location of those services. These decisions will determine the child's educational placement on the continuum of alternate placements.

FAPE Initial IEP contains the school’s proposal to begin the provision of FAPE, or When a child is not eligible for special education services, the LEA must document the refusal to initiate the provision of FAPE. IEP Team reviews the IEP and IEP Team may propose or refuse to change the provision of a FAPE.

FAPE IEP changes to the provision of FAPE include: Change in the domains or skills of the measurable annual goal(s). Change in the type, amount, or location of the special education and/or related services. Change in accommodations, modifications, supplementary aids, supplementary services, supports, and/or assistive technology; and Addition/removal of behavioral intervention plan. PWN is provided upon completion of the IEP.

One DEC 5 for Multiple Decisions All the proposals or refusals to initiate or change the identification, evaluation, educational placement, or provision of a FAPE must be documented in the DEC 5. One form for all actions. Each decision must be addressed in all areas of the notice.

Multiple Proposals Documented on One PWN The IEP Team, on behalf of the public agency, proposes: Changing an IEP annual goal skill or domain Increasing special education services and Changing the educational placement from regular to resource.

Document ALL Proposals and Refusals Take detailed notes of proposals and refusals during the discussion then completion of a compliant PWN will flow naturally and logically.

Notes for PWN Propose Reject 1. 1. 2. 2. Reasons: 1. 2.

Attorneys say that: Leaving out required elements of the notice and/or not clearly articulating what your district proposes or refuses are top errors. Such mistakes are procedural violations under the IDEA and can lead to misunderstandings with parents. LRP’s Special Ed Connection website.

PWN Must Include Seven (7) Elements 1 Description of the action(s) proposed or refused by the LEA. Clear explanation of each proposal and/or refusal.

The LEA Proposes: Changing the content of Kara’s reading goal from a concentration on reading fluency to focusing on reading comprehension. Changing Kara’s “read everything aloud” accommodation for class, district-wide, and statewide tests to “read unfamiliar words aloud upon student request.”

Content of Notice 2 An explanation of why the LEA proposes or refuses to take the action(s) (Each action taken must be included.)

Reason(s) for the Proposal(s) Kara’s fluency rate is now even with that of her nondisabled peers. When passages are read aloud, her average score for comprehension is 90%. When confronted with text containing unfamiliar words, her comprehension drops. She needs to work toward becoming an independent reader; therefore, the accommodation of “read everything aloud” was changed to “read unfamiliar words aloud upon student request” for tests.

Content of Notice 3 A description of other options that the IEP Team considered and the reasons why those options were rejected;

Other option(s) considered Considered developing an annual goal to address reading fluency. Considered removing all reading accommodations for class, district-wide, and statewide tests. Considered a change in service delivery.

Options Considered & Reasons Rejected Continuing a fluency goal was rejected because her current rate of reading is at grade level expectation. Removing all reading accommodations from class, district-wide, and statewide tests was rejected because unfamiliar words prevent her from demonstrating her understanding of the content. Changing her service delivery was rejected since data shows she is progressing at an appropriate rate.

Content of Notice 4 A description of each evaluation procedure, assessment, record, or report the LEA used as a basis for the proposed or refused action(s).

We compared Kara’s scores and classwork with that of her peers. A description of each evaluation procedure, assessment, record, or report the LEA used as a basis for the proposed or refused action. We used Kara’s scores on the Gray Oral Reading Test and the Test of Silent Reading Efficiency. We compared Kara’s scores and classwork with that of her peers.

Content of Notice 5 A description of other factors that are relevant to the LEA's proposal or refusal.

Other Relevant Factors Kara’s cooperation and strong work ethic were considered relevant to this proposal. . ***************************************************************** Notice given/sent: MUST provide time for the parent to receive the written notice PRIOR to the implementation date Method of Delivery: MUST account for time needed for parent to receive the written notice PRIOR to the implementation date.

Content of Notice 6 A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, how a copy of the procedural safeguards can be obtained;

Notice of Procedural Safeguards This is the final action (decision) of the local educational agency. If you disagree, you, as the parent or adult student, are entitled to the due process rights that are described in your copy of the Procedural Safeguards: Handbook on Parents' Rights. The deadline for filing a petition for a due process hearing is one year (1 year) from receipt of this notice. If you do not have a copy of the Procedural Safeguards: Handbook on Parents' Rights or would like another one, please contact your school principal or call the local director of Exceptional Children Programs.

Content of Notice 7 Sources for parents to contact to obtain assistance in understanding the provisions of this part; (pre-printed on the DEC 5)

Sources for Assistance The principal or EC director can also help you understand your rights if you have any questions, or you can call the Exceptional Children’s Assistance Center, 1-800-962-6817. Please save this notice for your records. If you have any questions, please feel free to call: Name: , Phone Number: , or Electronic Mail (E-mail) at .

Notice in Understandable Language The notice must be: Written in language understandable to the general public, and Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

Notice in Understandable Language If the native language or other mode of communication of the parent is not a written language, the public agency must take steps to ensure: That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;...

Notice in Understandable Language ...That the parent understands the content of the notice; and That there is written evidence that the requirements in the paragraphs of the previous slide have been met.

An NC Hearing Officer said: “Virtually all of Respondent’s Prior Written Notices were flawed and not in compliance with the requirements of IDEA. Most notably, the June 2004 Meeting DEC 5 does not address why the student’s writing was not assessed nor why the recommendations regarding further evaluations were not followed.”

The 4th Circuit Court said: “Parents must receive express notice in writing of an agency's decision in order for the statute of limitations period to be triggered. ” C.M., 241 F.3d at 386; N.C. Gen. Stat. § 150B-23(f) (2008).

The 4th Circuit Court said: Specifically, N.C. Gen. Stat. § 150B-23(f) requires that this written notice “set forth the agency action, and shall inform the persons of the right, the procedure, and the time limit to file a contested case petition.”

The 4th Circuit Court said: To satisfy these requirements, the written notice must communicate that the agency has acted and that this action is one that triggers the right to file ... a contested case petition for a due process hearing. 

The 4th Circuit Court said: Unless the school authorities do this, parents, who will often have already engaged in lengthy negotiations with the school system, will likely (and understandably) conclude that a school is simply stating its present bargaining posture, which is open to further negotiation and does not trigger any limitations period. C.M., 241 F.3d at 386

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