Children with Disabilities Have a Right to FAPE During Teacher Strikes

Tuesday, April 16, 2013

strikeRecently, many Ohio parents have asked whether their children on IEPs, or eligible for IEPs, have a right to receive a free appropriate public education (“FAPE”) during a teacher strike. The answer to this is “yes.” A work stoppage or a picket line does not excuse the school district’s responsibility to follow your child’s IEP or to provide your child with FAPE. Similarly, a strike does not excuse the Ohio Department of Education from fulfilling its ultimate responsibility to ensure that Ohio children with disabilities receive FAPE.

All remedies that are available under the Individuals with Disabilities Education Act (“IDEA”) to parents in normal times are available to parents during a strike. This includes filing a due process action to enforce your child’s right to FAPE, and/or making a unilateral placement of your child and seeking tuition reimbursement from the District as a result of the District’s failure to provide FAPE.

What relief can you expect? The remedy depends upon your child and his needs. The school can be ordered to provide (or can voluntarily provide) compensatory educational services to make up for the services missed. For example, if your child missed 20 hours of speech therapy, compensatory educational services could consist of 20 hours of speech therapy. If your child received no special education services or supports at all for two months, and regressed as a result, more than two months of additional service might be required to compensate for this loss, and a special, intensive placement might be required. Remember that for some disabled children, there is a limited “window of opportunity” during their early years which, if missed, could require double the intensity and length of service to make up for what has been lost. Parents should work with their private therapists and consultants in determining what approach to take.

Do you have to wait until the conclusion of the strike to seek compensatory services? The answer is “no.” Compensatory services can consist of private therapies or placements that cannot be obtained from the school district while the strike goes forward. It is probably not in your child’s best interest to wait months for him to get the services that he is entitled to, and needs on an ongoing basis. Parents who wish to hold the school district financially responsible for private therapies and services are advised to read about procedures for unilateral private placements and to consult an attorney to make sure they are fully protected.

- Posted by Attorney Judith Saltzman

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