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DLTC INFO MEMO 2010-03

STATE OF WISCONSIN

Department of Health Services
Division of Long Term Care

DLTC Information Memo Series 2010-03
Date: May 18, 2010
Index Title: Birth to 3 Program Federal Written Prior Notice

To: Listserv

For: County Birth to 3 Program Coordinators
Area Administrators / Human Services Area Coordinators
County Departments of Developmental Disabilities Services Directors
County Departments of Human Services Directors
County Departments of Social Services Directors
County Waiver Coordinators
County DD Coordinators
Tribal Chairpersons

From: Susan J. Crowley
Administrator

Subject: Written Prior Notice

Document Summary

This memo provides additional clarity for Birth to 3 Programs regarding the requirement of Written Prior Notice. The Birth to 3 Program staff will provide the family with written prior notice related to key decisions made during the Birth to 3 Program process and the notice shall include sufficient detail of the action(s) recommended and the reasoning behind those actions being chosen.

DHS is providing clarification related to the existing Birth to 3 Program obligation under the Individuals with Disabilities Education Act (IDEA) section 639(a)(6) and the Part C Regulations 34 CFR§ 303.403
(http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=f0a94a6cebed9e178ed1b3cf43f7f66a;rgn=div5;view=text;node=34%3A2.1.1.1.2;idno=34;cc=ecfr#34:2.1.1.1.2.1) to provide parents with written prior notice a reasonable time before the Birth to 3 Program proposes to initiate or change, or refuses to initiate or change, any of the following: identification (eligibility status), evaluation or placement of the child; and provision of appropriate early intervention services to the child and the child's family. The Office of Special Education Programs (OSEP) recently clarified several key procedural requirements related to Written Prior Notice. If the Early Intervention Services (EIS) provider proposes to initiate or change the identification, evaluation, or placement of the child, or the provision of appropriate early intervention services to the child and the child's family, the EIS provider must provide the parent written prior notice a reasonable time before an IFSP meeting with the parents regarding the proposed action. If the EIS provider, as a result of an annual or periodic IFSP meeting or, at the request of the parents, proposes, or refuses, to initiate or change the identification, evaluation, or placement of the child, or the provision of appropriate early intervention services to the child and the child's family, the EIS provider must provide the parent written prior notice a reasonable time after the IFSP meeting, or the request by the parents, regarding the proposed or refused action. The federal requirements for Written Prior Notice indicates that these notices must be completed after a decision is made by the Early Intervention (EI) team and before the proposed action will occur. The federal language is as follows:

IDEA section 639(a)(6)
"Written Prior Notice to the parents of an infant or toddler with a disability whenever the State agency or service provider proposes to initiate or change, or refuses to initiate or change the identification, evaluation or placement of the infant or toddler with a disability, or the provision of appropriate early intervention services to the infant or toddler."

The Birth to 3 Program staff will provide the family with written prior notice related to key decision points in the Birth to 3 Program process along with a copy of the Parent & Child Rights. The written prior notice must include sufficient detail to inform the parent about:

  1. the proposed or refused action;
  2. the reasons for taking the action, including a description of other options considered and
    reasons for rejecting them;
  3. the information upon which the proposed or refused action is based;
  4. the parent's right to refuse consent to an evaluation or a service; and
  5. all procedural safeguards the parent has under Part C, including the right to file a complaint, a description of how to file a complaint, information on when a complaint must be filed, the right to participate in mediation and the right to request a hearing regarding the proposed or refused action.

The notice shall be in language understandable to the general public and shall be available to the family in the language or mode of communication normally used by the parent. [34 CFR § 303.403 (b) &(c)]

In response to a parental request or after an annual or periodic IFSP meeting, written Prior Notice is given to the parents of a child a reasonable time before the county or provider proposes, or refuses, to initiate or change the identification, evaluation, or placement of the child, or the provision of appropriate early intervention services to the child and the child's family. The proposed or refused action must be fully explained to the family before the family gives their consent. The Written Prior Notice serves as the basis for formal notification to the family regarding their right to agree or disagree with the decision. Written Prior Notice is to be given to a family a reasonable amount of time before the change occurs. This allows the family time to determine if they want to give consent or choose another avenue (e.g. calling an IFSP meeting, requesting mediation, etc.). However, if the family gives written consent with a clear understanding of their rights, then the EI Team may immediately move to the next step in the process.

The Birth to 3 Written Prior Notice procedural safeguard is designed to provide families participating in the Birth to 3 Program with the information related to decisions made regarding their child. In Wisconsin, families are an integral part of the Birth to 3 process, participating in the meetings where decisions are made to support the child and family. The clarification of this requirement assures the family's involvement in the decisions made during the entire IFSP process, from referral to exit, and assures families know their rights.

Please note that, as explained by OSEP, written prior notice, which must be provided to inform parents of a decision, is different from the invitation of the IFSP meeting, required by 34 CFR§303.342(d)(2).

This clarification of the Written Prior Notice requirement is effective immediately. If the county Birth to 3 agency has any questions, then they should contact their lead Birth to 3 staff member.

REGIONAL OFFICE CONTACT: Human Services Area Coordinators

CENTRAL OFFICE CONTACT: Julie Bryda, Children's Services Supervisor, 608-266-7469 or
Julie.bryda@wisconsin.gov

MEMO WEB SITE: http://www.dhs.wisconsin.gov/dsl_info/

Last Revised: September 13, 2010