Is the IEP a contract? No. The IEP is not a contract.

I often get asked about the IEP being a contract, and until recently I thought it was a binding contract between the parent and the school. Unfortunately I have some bad news. I really hate to break this to everyone, but its the truth. The IEP is not a contract.

I know, I know. This contradicts what we have all been told as parents and by some well meaning blog posts on the internet, but after lengthy research and discussion with over a dozen seasoned special education attorneys, I can safely say that the IEP is not a contract.

I will explain some of the reasons why, although I am not an attorney so I will not dive too deeply into what I cannot professionally comment upon. However, I am also a REALTOR so I do have some basic contract law knowledge from that profession, and even I can see it fails to meet some simple contract tests.

This Wikipedia page on contracts covers contract basics, although it can get much more complicated. However, even using the simplest version on that page means a contract requires offer, acceptance, consideration and mutual intent. I’m not going to speak to mutual intent, and offer and acceptance exist in the IEP process. However, the real problem is in consideration.

The school is offering you something of value, but you as the parent are not. Additionally, the school is not voluntarily offering you something of value, but instead offering you something of value that it is legally required to offer. These two factors negate the “consideration” part of the contract process, which somewhat disqualifies it from contract status.

The simplest explanation I have heard, though, is that the IEP is not a contract because Congress consistently chooses not to make it one. Additionally, the terms and conditions are by statute, not agreement, which is significantly different from a contract to purchase a home or a car. Normally you agree to things that happen if someone defaults or fails to do something, but in the IEP world that is all handled by statutes and regulations.

I think the best explanation is from this article from the Cornell Journal of Law and Public Policy entitled “Bargaining and Distribution in Special Education.” I’ve quoted the simplest and most relevant section below, but its worth taking the time to read in its entirety.

Contradicting these guidelines, the federal IDEA does not contain any reference to contracts. The Massachusetts Department of Education’s lexical choice, as it turns out, is technically inaccurate. An IEP is not a contract in a formal sense. It is simply a statement produced by an educational agency at the end of a formalized collaborative process, defining the appropriate set of special education services for a given child. Services are technically not a matter of contractual rights, but are educational entitlements conferred by law to each eligible child on the basis of stated criteria and with due process guarantees. The IDEA contains elements of a pseudo-contractual nature, such as parents’ participation in the IEP drafting process and parental consent as a condition precedent to the implementation of any IEP provisions. But such features are increasingly common in the relationship between citizens and administrative agencies and are signs of collaborative governance rather than traits of contractual dealings in a technical sense.

Finally, I did read a snippet someone posted about IDEA 1997 specifically stating the IEP did not create a contractual relationship, but I was unable to confirm that in a quick scan of the bill. So instead I went to the full text of IDEA 2004 and read through section 614(d) which governs the IEP document itself. The IEP is consistently referred to as a “statement” or, more accurately, a series of statements about the child and the child’s education, services and progress. Nowhere that I could find is the IEP referred to as a “contract” in the law. The contract language in the act that I found was specific to the LEA being able to contract services or meet needs with outside vendors.

I hope that clears things up. Just because the IEP is not a contract does not mean it cannot be enforced. It is still a legal document with parental and student rights spelled out. Feel free to contact me if you want to discuss it further.

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