AdvocacyDenver to DPS: Current Compensatory Services Plan is Failing Students with Disabilities

To: Denver Public Schools Board of Education

The following concerns and recommendations are submitted on behalf of students with disabilities who are enrolled in the Denver Public Schools. Concerns, opinions and recommendations were provided to the Department of Special Education and Student Equity and Opportunity but the staff has been firm forwarding procedures and timelines.

March 2020 all students were sent home on an extended break. Students were moved to remote instruction. This had a significant impact on all learners, including students with disabilities. For students with disabilities, the Individualized Education Program team (which includes the parent) met and developed a Contingency Plan. An Individualized Education Program (IEP) and a Contingency Plan are not the same. An IEP is an offer of a free, appropriate public education, a Contingency remote learning plan outlines what would be provided during remote learning as a result of the public health emergency.

Remote instruction was again provided to all learners at the start of the 2020-2021 school year. Youngest learners and a small number of middle and high school students, with the most significant disabilities (approximately 10%) were offered in person, hybrid instruction. In person instruction for middle and high school learners was staggered and some learners were not offered a hybrid schedule until February/March 2021. April 2021 Special Education Teachers and Related Service providers were given a directive to determine compensatory services and provide parent with Prior Written Notice regarding compensatory services. The timeline for completing and submitting information is May 15, 2021. The District reports that staff is receiving additional pay because these decisions are completed/made outside of the work day.

Compensatory services are educational services that are awarded to students with disabilities to make up for services that they lost because of a school district’s failure to provide an appropriate educational placement and/or services. Advocates and parents do not fault school or the District for the pandemic, but the pandemic does not waive procedures that require the IEP team (of which the parent is a member) to determine compensatory services that will be provided to make up for services missed during COVID 19. Compensatory services are designed to place the student in the same position he or she would have been in if there had not been an interruption in learning. The district’s procedures are flawed:

Educators are making decisions outside of an IEP meeting, without the parents;
Parents are provided a Prior Written Notice of the decision and parents are not informed of the process, definition of terms, or that they have a right and a definitive timeline to disagree with the decision;
Some students have not returned to school and no student is participating in pre-pandemic level of general education and special education programming/services. It is premature to calculate educational harm and make a final offer for recovery services;
Compensatory/recovery services/instruction have not been identified for neurotypical peers, instead the District will gather information in relation to individual learners and will make decisions once schools are able to return to a normal schedule.
The immediate timeline for determining compensatory services discriminates against students with disabilities. Attached is a copy of the IEP Recovery Worksheet. Although the worksheet asks for parent and Local Education Agency (LEA) signature, parents are not provided with a copy of the worksheet or other supporting documentation. The worksheet asks that the team identify Tier 1 (general education) Tier 2 and Tier 3 recovery services; again the offer for general education students will be made at a later date.

Advocates work with a large number of parents of children with disabilities. We began receiving calls from parents who said they had received a call from a teacher making an offer, or reporting that their child is not eligible for compensatory services and that they received an email or letter titled Prior Written Notice. Many of our clients received notice that their child will not receive any services, others received notice that their child is eligible for as little as 210 minutes or as much as 15 hours. Fifteen hours was offered to a student who did not receive technology or a hot spot until October 2020 (no instruction or services was provided March, April, May and September through October 20^th). Prior Written Notice informs the family that compensatory services will be provided sometime in the next two years and could be delivered during the regular school day.

The District will receive and has budgeted 9 million dollars for special education and an additional 22 million to pay for recovery services for Denver students.

The District has made it clear that they will not provide compensatory/recovery services during the summer 2021. Accordingly, there is no immediate need or reason to define an offer of compensatory/recovery services to students with disabilities.
A written notice should be sent to each parent setting a new timeline and explaining the procedures for determining compensatory/recovery services. The notice should include plain language definition of terms; the notice should be provided in the parent’s primary language.
An offer (refusal) of compensatory services must be the result of an Individualized Education Program meeting that includes the parent.
The IEP team should consider the following, the list is not exhaustive:
- whether or not appropriate technology was made available to the student;
- whether the student was able to operate the technology independently and/or with limited assistance;
- whether remote learning had meaning to the student;
- whether the student made expected progress toward the goals and objectives that were defined in the IEP that was in place at the start of the pandemic as well as additional IEPs developed during the course of the pandemic (2019-2020 and 2020-2021 school years);
- whether the student was provided the special education and related services defined in the IEP that was in place at the start of the pandemic as well as additional IEPs developed during the course of the pandemic (2019-2020 and 2020-2021 school years).

Applying a one size fits all, blanket approach when identifying compensatory services does not align with the Individuals with Disabilities Education Act and/or Section 504 of the Rehabilitation Act. We look forward to working with the Board of Education and/or District to resolve the issues outlined in this letter.

Respectfully,

Pamela Bisceglia
Executive Director