Can an IEP be changed without parental consent?
For the purposes of this post, it assumes that you (parent) already have an initial IEP in place. Your child went through the evaluation process, you had your IEP meeting and there is an agreed-upon IEP in place. And then the fun begins! (Seriously though, most of us kinda float through the process the first time, because we don’t know what we don’t know.)
But, once an IEP is in place, can you change it? Can the school change it without the parents? When do you change the IEP?
An IEP is a living, fluid document.
An IEP is a fluid document. Think of it this way. If your child has an IEP every grade from K through 12, they don’t have 13 IEPs. They have one IEP. You may have at least 13 IEP meetings, but the same IEP is being discussed each time. It just flows and gets changed and adjusted as needs change, demands change and so on. But it’s still one IEP.
There are several different scenarios that would warrant changing an IEP. Some of them are (but not limited to):
- Annual IEP Review (but changes are NOT limited to just the annual review)
- A lack of expected progress toward the IEP goals
- A change in the student’s behavior, for better or worse.
- Academic Demands have changed (child moved up to middle school but IEP review is in February)
- Social Demands have changed
- Child experienced trauma
- Information from any new evaluation or re-eval
- New Information or concerns shared by the parent or teacher
- Your child’s anticipated needs
- Other matters, issues, or concerns that were not present at annual review time
What IDEA Says about Changing an IEP
(b) Review and revision of IEPs—
(1) General. Each public agency must ensure that, subject to paragraphs (b)(2) and (b)(3) of this section, the IEP Team—
(i) Reviews the child’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved; and
(ii) Revises the IEP, as appropriate, to address—
(A) Any lack of expected progress toward the annual goals described in §300.320(a)(2), and in the general education curriculum, if appropriate;(B) The results of any reevaluation conducted under §300.303;(C) Information about the child provided to, or by, the parents, as described under §300.305(a)(2);
(D) The child’s anticipated needs; or
(E) Other matters.
(2) Consideration of special factors. In conducting a review of the child’s IEP, the IEP Team must consider the special factors described in paragraph (a)(2) of this section.
(3) Requirement with respect to regular education teacher. A regular education teacher of the child, as a member of the IEP Team, must, consistent with paragraph (a)(3) of this section, participate in the review and revision of the IEP of the child.
If you notice, IDEA also says “reevaluation.” IDEA does not say that you do the triennial re-eval and then develop a whole new IEP.
In the code, IDEA also states several times that it is the “IEP Team” that does this. Not “the school” or “the teacher” or “the IEP coordinator” or “IEP team minus Mom and Dad.” The IEP team!
How do you make changes to an IEP?
How you proceed depends on what kind of change you’re asking for.
For a small, simple change, you would do a No-Meet IEP Addendum/Amendment. I have more information about that process in that link. An example of this would be increasing SLP therapy time from 15 minutes to 30 minutes per week.
For larger changes, such as adding a behavior plan or changing placement, you’ll want to do a thorough letter requesting an IEP meeting. Take some time to put this together well. You want to be specific and objective about your concerns and have examples.
You also should look at your child’s IEP before sending this letter requesting these changes. Are these areas of need even identified in IEP Present Levels? If not, you’ll likely need to ask for evaluations in these specific areas. For example, if you think your child needs a Behavior Improvement Plan, you need to request an <a href="https://adayinourshoes.com/behavior-iep-special-education/”>FBA before the behavior plan can be implemented.
If you are within 30-90 days of your child’s triennial review or annual IEP meeting, I recommend you just wait. Instead of trying to get the team to agree to another meeting now, I’d spend my time making sure that my child is getting all the evals I want them to get. And, you should be constructing your parent concerns letter. Of course, every situation is different and emergencies come up and some situations cannot wait.
But they sent me an IEP with changes!
Ok, so this happens way more often than it should, based on what I see in our Facebook group. A parent receives an IEP and it has been changed. Or gets an email notification of “Hey we’re going to change the IEP from “this” to “this.” Not cool.
There are several ways you can handle this.
The first one is if you want to give them the opportunity to save face. So, you’re calling them out on it, but they get an out. If I was going to do this, I would send an email that said something like, “Dear person who sent me this revised IEP, I just received this IEP and see that “this” was changed to “this.” I do not recall talking or emailing with anyone about this change, and I was unaware of it. I also do not recall receiving a PWN regarding this change. Can you please call me or email me back to explain? Thanks.”
Now, I would hope, that given this opportunity of being called out (but politely) that they would do the right thing and retract the change. Or send you the PWN with the proposed change. From there, you’ll have to read the PWN, your Procedural Safeguards, and decide what you’re going to do.
If you’re not feeling polite and gracious or like giving second chances, you can file complaints. A state compliance complaint for failing to issue a PWN would be an option. Or, an OCR complaint for not allowing you meaningful participation in the IEP process, thus a denial of FAPE.
Lastly, everywhere you look in IDEA about this issue, it says “IEP Team.” And parents are a mandated member of the IEP team. If your team is pushing back on this, you may want to show them the language in IDEA, or conversely, ask them to show you where it says that the school may change an IEP without parental consent.
What is IEP Consent Override?
Consent Override is also described in IDEA under the Parental Consent section. It says:
(3)(i) If the parent of a child enrolled in public school or seeking to be enrolled in public school does not provide consent for initial evaluation under paragraph (a)(1) of this section, or the parent fails to respond to a request to provide consent, the public agency may, but is not required to, pursue the initial evaluation of the child by utilizing the procedural safeguards in subpart E of this part (including the mediation procedures under §300.506 or the due process procedures under §§300.507 through 300.516), if appropriate, except to the extent inconsistent with State law relating to such parental consent.
(ii) The public agency does not violate its obligation under §300.111 and §§300.301 through 300.311 if it declines to pursue the evaluation.
So what this section describes is like the following scenario: LEA suspects IEP issues, they want to evaluate. They reach out to you, the parent, to evaluate. You, as the parent, either say no or you do not respond at all. The LEA can then pursue this via Procedural Safeguards, but they are not required to exercise Procedural Safeguards.
It goes on:
(ii) If the parent refuses to consent to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures described in paragraph (a)(3) of this section.
Basically the same as initial IEP evaluations. If you refuse or do not respond, the school district can pursue it, but is not required to.
The takeaway: This section of IDEA does not at all address anything besides IEP evaluations and re-evaluations. It says nothing about creating, developing or changing an IEP.
Good luck, and just one more reason to never IEP alone!