Identifying Information: Start with the date, the parents’ name, the child’s name and date of birth, your address, email, and phone number, think inside address to a business letter. Make this information front and center of every document that you create in your pursuit of a FAPE, as it will likely become evidence in a due process case. From personal experience, parents are going to have to demonstrate that they have both the tenacity and the capacity to file one due process claim after another if they want to obtain meaningful SE services from a Texas school district in this post 8.5% cap era. File this fact under the heading of, so very sad, but so very true.
SALUTATION: Dear Ms. Pugh, ECISD SE Director & Eric Rodriguez, ECISD SE Lawyer is the greeting that I used for this plus or minus 3000 word email that I prepared for the parents to send to the district on May 14, 2020 as the school district, led by the SE Director and the SE Lawyer continued to deny Aleczander services due to, are you ready for this, the global pandemic? As many of you well know, my advocacy for Aleczander began over 4 years ago. When I started down this road, I thought that the district was terrified that I’d call TEA and “tell on them.” Now I realize that they lie with impunity. To coin a phrase from a former White House official, “we must never let a good crisis go to waste.”
Today’s Insight: the Texas Education Agency doesn’t give a flip about your child’s need for special education services so they are extremely unlikely to swoop in all avenging angel like and smack the districts into submission. My level of awareness of the deep state control of education in Texas dates back to 2015 when I began this journey, and is laughable today. Word of advice here: don’t forget how to laugh, or you’ll lose your soul along the way. Hence today’s paraphrased quote from Plato: Don’t let people rent space in your head unless they’re worthy tenants. Administrators will lie to parents and advocates, even as they know full well that they are lying and that you are taping every word that falls out of their mouths. They’re not worried about your audio or transcribed meeting notes creating a record of their hollow false words for this simple reason: it is highly unlikely that any one individual, say a hearing officer or a state or federal court judge who might possibly be in a position to provide a remedy to you is ever going to listen to that tape or read the transcribed record that you paid some place like REV.com to provide for you.
I’m not saying you don’t do things such as recording all meetings, transcribing notes and audio files, filing written summaries of your meetings immediately thereafter . . . I’m saying you must do these things. The fact that you have documentation and can back up your statements with actual evidence make it much more likely that the district will go ahead and provide your child with the services that your educational assessments indicate he needs to make meaningful progress in light of his unique circumstances. This hasn’t worked, YET, in Aleczander’s case, but we remain ever hopeful.
My personal belief is that, had I know enough to file the due process the day after the 12.17.15 meeting when Mary E blew off the parent’s assessment information for the 2nd time, Aleczander would have been enrolled at the Winston School at ECISD expense long before the end of first grade. However, by the time the district had gone through all of its shenanigans for another full year, leading me to finally file a due process claim in the summer of 2017, the district had way too much to cover up . . . also sadly, by that time, due to the PTSD condition caused by the way ECISD treated Aleczander at Sinclair, he’d developed a horrible stuttering condition and the Winston School, which had given him pro bono services during the summer of 2016, could no longer accept him until he got speech therapy sufficient to where the other students and the teachers could understand him when he talked. Even worse, after two years of speech therapy on the parent’s dollar but without dyslexia therapy due to financial considerations, the stutter has resolved and his intelligibility was sufficient however the Winston School considered my updated progress report/assessment information and determined that he was too far below grade level in reading and writing for them to take him.
Districts do not care that you know that they are lying to you for the simple reason that even if you get to the point of filing a due process suit with TEA, this runaround is going to continue. Sad fact, TEA is the source of the problem. Historically, over 95% of Texas due process cases filed settle in mediation, and over 50% of the TEA hearing officers have NEVER found in favor of a parent in the remaining cases that are heard at the bureaucratic level. To put this into a numerical statement, if your case is one of the 5 out of every 100 that comes before an actual TEA hearing officer, you have only a 50-50 chance of prevailing. And that’s not the end of my tale of woe. For sure, if the parent wins, the district is going to file an appeal, so you’re going on to state court. Unless you fold, which is what they’re hoping you’ll do. And, if the district prevails at the TEA hearing, which they’ll likely do because they obfuscate out the wazoo, then you’ve got to come up with the resources, both financial and emotional, to appeal to state courts. Odds aren’t in your favor, to put it mildly.
Working pro bono, I’ve filed special education complaints to TEA, mediation requests to TEA, an OCR complaint to the feds, and due process claims to TEA. Note that except for the OCR complaint each of the aforementioned actions is stated in the plural. I’ve had TEA officials tell me, off the record, that the only way to get the district to mediation is to file a due process claim. Lesson learned here: fight back hard and fast. Don’t worry that they’re not going to like you, because the very minute that you demonstrate the effrontery to question your child’s assessment or IEP, they’re going to stop liking you, if in fact they ever did. Districts don’t like to admit they’re at fault, hence if a child has a problem, they’re going to point the finger of blame at the parent. Forget about winning the parent of the year award, that ain’t ever gonna happen. So go ahead and get your expert witness, as Aleczander’s parents did in November 2015 when their son was in first grade. When the district–your child’s IEP team–refuses to even admit that your expert witness assessment information exists, as this district did, don’t mess around with going back and forth weekly to meet with them and argue your case for six months, as we did. File a Due Process Claim immediately.
Don’t know how? I didn’t either, but for $40 dollars, you can go online and order Doreen Philpott’s How To Do Your Own Due Process and you’re in business! Every bit of information that you’ll need is in there, don’t worry that you don’t know what you’re doing, you’ll figure it out as you go. Parents aren’t stupid, no matter how hard districts try to convince you that you are. Remember, we, all of us, make the road by walking!
This is the body of the email that I wrote for Eva to send to the DISTRICT. Back story: we’ve been asking for services since first grade and Aleczander should be going into 6th grade next year: we’ve got a lot of educational malfeasance to summarize. Hopefully your summary is going to be much shorter . . . our case is complicated by the fact that the district has been playing coverup since the summer of 2016. Not good . . .
Summary: May, 14, 2020
On March 6, 2020, ECISD Jennifer Baker, LSSP told us that ALL of the special education testing that we first signed consent for on 8.27.19 and for a 2nd time on 1.27.2020 had been completed. You are now telling us that the testing that we brought him to the DISTRICT to have done on 6 different occasions has NOT been completed and due to the COVID crisis we should not expect to hear from ECISD regarding a FAPE for Aleczander until school reopens at some indeterminate time in the future. This is unacceptable to us, as it would be to any parent.
Aleczander’s father, our educational diagnostician/expert witness, and I have serious concerns about ECISD’s proposed plan. To be blunt, none of the statements that you have made to us about Aleczander’s SE needs, his right to a FAPE, and his SE Disabilities conditions are true. Either you are woefully ignorant about learning disabilities that create the need for special education services, or you have conspired with the SE Lawyers that your district pays $350 per hour to deny our son a FAPE. Either way, we continue to request that you convene a meeting and provide Aleczander with an appropriate IEP that will address his unique learning profile and enable him to make academic progress consistent with the progress being made by his non-handicapped peers.
We, Aleczander’s parents and our diagnostician, request that members of Aleczander’s IEP/assessment team address these concerns. To your previous statements, most recently at the 8.14.19 REED, that Aleczander is not entitled to a FAPE per the IDEA, I remind you that Aleczander was diagnosed with developmental coordination disorder and qualified as a special needs child by ECISD on 11.1.16. He has developmental dyspraxia which causes educational learning disabilities in the areas of dyslexia, dysgraphia, and oral motor disfluency. At the time of the 8.14.19 REED he continued to be eligible for SE services under an ECISD OHI Disability/Eligibility Report signed by Dr. Jerry Tomasovic, pediatric neurologist, that was backed up by Dr. Tomasovic’s medical report dated September 20, 2016. This information is part of Aleczander’s ECISD SE Records. In other words, when you told us on 8.14.19 that he was not eligible for SE services under ANY disability criteria, you were lying.
At the 8.14.19 REED we provided the district with these CURRENT privately obtained educational assessment reports: March 2018-May 2019 Olmos Speech, Language and Learning Center; May 2018 Dr. Michael Roman, neurological psychologist; July 2019 Leslie Jernigan, MA, psychologist at Learning Foundations, and 8.14.18 Janis Arnold, educational diagnostician report. To date, our information has not been considered by the ECISD IEP team, is not documented in the 8.14.19 REED report that you failed to send us until January 27, 2020, and thus does not appear to have been taken into consideration by the district as it has continued to deny Aleczander any services to address his unique learning profile.
Per the audio tape of that 8.14.19 REED meeting, Eric Rodriguez asked if it was correct that he was hearing Mrs. Arnold and me talk about a congenital medical condition. Mr. Rodriguez stated, on the record, that he wouldn’t want the district to be a part of re-traumatizing Aleczander. Mr. Rodriguez instructed the SE Facilitator to obtain consents from me to get “official copies” of all of our information and to “allow his assessment team to speak with the other professionals who have tested Aleczander in the last three years.” This included 3 speech therapists, two OTs and two PTs, a neurological psychologist, a psychologist who specializes in brain-based learning assessment and educational treatment plan development, and an educational diagnostician. Mr. Rodriguez told us that he would “populate” the REED with our information as well as the information already in the district’s possession, and that we would have the document within a week. The populated REED, containing NONE of our new assessment information, was sent to us through our attorney on 1.27.2020. Dr. Lipsitt has told me, also on the record, that he sent the new OHI Eligibility report to ECISD in September 2019. Thus, Aleczander has never failed to qualify as a disabled student in need of SE consideration during the entire school year we have been asking for an IEP for him. Obviously, his 5th grade year has come and gone and you have done absolutely nothing for him. At this time we formally request compensatory services for the denial of a FAPE during the 2019-2020 school year. Please note that we first began asking you to convene an ARD and review our son’s educational needs well over a year ago, actually well over 2 years ago, the first occasion being a written request in September 2017.
We are in possession of multiple letters from the ECISD SE Director telling us that, as a matter of law, Aleczander is no longer entitled to a FAPE since we took him out of special education and enrolled him in a private school at our own expense after he was severely traumatized at ECISD’s Sinclair elementary during his first grade year (2015-2016). We can find nothing in the IDEA that supports ECISD’s multiple statements that Aleczander is not entitled to a Free Appropriate Public Education. In fact, the law clearly states that, regardless of how many times a parent removes a child from Special Education, the District continues to be responsible for assessing the CHILD at a minimum of once a year upon parent request.
In your most recent communication, the SE Director wrote:
I am replying back to you, to reassure you that the district is following TEAs most recent guidance on completing evaluations during school closure.
Specifically, on April 2, 2020, TEA guidance included the following concerning FIEs for which districts received consent before school closure:
Other Considerations: If the LEA cannot complete all components of an FIIE during a closure related to the pandemic as it would have in typical circumstances, eligibility determinations will likely be delayed. Special education eligibility determinations for students should not be made without consideration of all relevant data points that would be provided in an FIIE. Eligibility decisions, and any subsequent IEP development decisions require consideration of all relevant data in order to ensure that sound decisions are made in the best interest of the student [34 CFR 300.306].
In the event that you chose to enroll Aleczander at this time, we would be happy to collaborate with you to determine any general education interventions and supports that would be provided in the interim, pending completion of the FIE.
The fact that the ECISD Director of SE, Nina Pugh, continues to insist that ECISD has no previous knowledge or information about our son, is on the face of it, so ludicrous as to render her statements beyond insulting. We are not perhaps as well-educated as are the SE Director and the SE Lawyers, however we are not stupid. We’re doing everything we can, including taking Aleczander to the aforementioned experts, to help him learn to read and write and talk like other kids. We continue to ask for an ECISD IEP team appropriate to our son to meet and consider his needs. We find nothing in the IDEA suggesting that Aleczander needs a SE LAWYER or a SE DIRECTOR on his IEP team. We have certainly never provided consent for individuals with no knowledge of our son or his specific learning conditions to attend his meetings. Our personal experience is that the meetings held with the SE LAWYER have never resulted in any semblance of an appropriate educational plan being developed for Aleczander. As we have tape recordings of over a dozen meetings held with the SE LAWYERs (Eric Rodriguez and Elvin Houston) running the meetings, dictating what the teachers and therapists can say, do, and offer, we certainly know whereof we speak.
We ask that the educational professionals who just FINISHED assessing Aleczander come up with an appropriate IEP for our son. We might point out that Ms. Myerly charges $300 per MONTH to teach Aleczander for five 8-hour days per week. If the DISTRICT ceases using the $350 per hour SE attorneys, the services we are requesting for our son will cost significantly less than what ECISD currently pays Eric Rodriguez to attend meetings and review all correspondence from us (see the threatening letters he sent to our educational diagnostician after the 8.4.19 REED). Some of the IEP meetings in the past have run over 5 hours; do the math, $350 X 5 = $1, 750. And that’s just for one meeting, it says nothing about the district dollars spent reviewing the letters we’ve sent and writing the responses Ms. Pugh sends us. We do have audio confirmation of these meetings, and suggest that taxpayer dollars might be better spend providing SE services to Aleczander and the district’s other handicapped students. Certainly, we would like to attend an IEP meeting without either of the SE attorneys present if possible.
• ECISD has not considered any of the privately obtained assessment information that we have provided. All of this information is needed to develop an appropriate IEP and to allow parents to participate meaningfully in the IEP process.
• The ECISD assessment team told us on March 6, 2020 that they HAD completed all of their testing and that they needed only to score the tests and write up their data. We were told by Jennifer Baker that the IEP team meeting would NOT happen during spring break, but WOULD happen in March 2020.
• Since September 2017, ECISD has repeatedly stated Aleczander is NOT eligible for a FAPE because he isn’t enrolled in SE. (written communications from the SE Director and the SE lawyer available)
• ECISD refused to conduct its own assessment on multiple occasions since 1.1.17 always stating that ECISD couldn’t test Aleczander or provide an IEP because he wasn’t in special education and/or wasn’t enrolled at Sinclair. IDEA case law affirms that children residing in the district but not enrolled in the DISTRICT are entitled to a FAPE, including SE assessment, convening of an IEP meeting, and determination of educational need/s.As you well know per the previous IEPs that you developed for Aleczander, the last one dated July 31, 2017, Aleczander has learning disabilities that impair his ability to read, write, and speak without educational therapy, and gross and fine motor delays related to the Developmental Dyspraxia (first diagnosed when he was 4). These records are in the ECISD’s possession; see the two ECISD FIEs dated 4.2015 and 5. 2015, the February 2016 IEE from Dr.Jean Karoly, AIM, the Amanda Real, ECISD Lead LSSP April 2016 Dyslexia Addendum, the Permian Basin Rehab Center 2013 documentation of speech, OT, and PT services, and the Odessa PreKindergarten enrollment and assessment data from 2013 which should have ensured that Aleczander was transferred into an ECISD PreKindergarten Program.
As you also know (audio tape 8.14.19 REED), Aleczander suffers from other neurological and psychological problems related to the district’s failure to provide him with a FAPE during the two years that he previously attended ECISD public school (Sinclair). Nonetheless, at the 8.14.19 REED, the ECISD SE Director, Nina Pugh, and the ECISD SE Lawyer, Eric Rodriguez, continued to tell us that the district has no way of knowing that our son is a special needs student who requires individualized special education services to address his unique needs and circumstances. Now Ms. Pugh writes about the “global pandemic” to deny Aleczander a FAPE. As none of your previous statements to us have been accurate and reliable, we remain unconvinced that the “global pandemic” has caused your assessment staff to forget that they have finished all of the testing and were ready to go to ARD within two weeks after March 6th as we clearly recall that we were told.
Between Aleczander’s disabilities and the realities of our family’s lives, the fact that no services, even distant learning services, have been provided by the school mean that Aleczander, who turns 11 years of age this month and has become chronologically appropriate to move to middle school in the fall, has in effect just lost another entire year of educational services needed to help him master age and grade level appropriate academics. At Aleczander’s July 31, 2017 annual review, (the audio is available should you feel the need to confirm what we were told), you offered to provide Aleczander with daily speech therapy 1-1, daily dyslexia therapy 1-1, and 2 X weekly OT and PT 1-1 IF we would enroll him back in an ECISD elementary school. You also offered to transfer him to any elementary school in the district as you agreed that the trauma he experienced at Sinclair during first grade (diagnosed as Post Traumatic Stress Disorder, information which we also provided you with at the 8.14.19 REED) made it unrealistic for Aleczander to re-enroll at Sinclair elementary.
Now you are saying that you can’t convene an IEP team for him as you have no idea if he qualifies as special needs; in light of your own special education records for Aleczander, this is a blatant lie. You do know that he qualifies for special education services under OHI (you obtained a new eligibility statement from Dr. Henry Lipsitt in September 2020) after the 8.14.19 REED meeting where, despite the 11.1.16 Dr. Tomasovic Disability report, Mr. Rodriguez said Aleczander wasn’t eligible, as a matter of law, for a FAPE. Thus, both the SE Lawyer and the SE Director have been and continue to lie to us about our son’s civil rights to a FAPE.
I am requesting an immediate IEP meeting, with feedback on ALL of Aleczander’s current test results, including the ones we provided you on 8.14.19 and which you continue to ignore. We have the audio tape of the REED/EVALUATION meeting where Janis Arnold, ed diag and Eva C, mother, presented and discussed the information. I also signed multiple consents for the ECISD to obtain your own copies of all of our privately obtained assessment and medical information.
We are requesting, at a minimum, that the IEP you purpose include the services that you offered to provide Aleczander on July 31, 2017. As we have stated in writing on multiple occasions, we would like for Aleczander to attend Ms. Myerly’s homeschool (where your assessment team members observed him for two days and stated to us that they were amazed at the progress he had made since the last time they’d seen Aleczander in 2017), in the mornings. Then in the afternoon, we would like for him to come to ECISD central office to get daily 1-1 dyslexia instruction, daily 1-1 speech therapy, daily 1-1 physical therapy, and daily 1-1 occupational therapy. We request daily feedback from each of the professionals treating Aleczander so that we can provide follow-up and reinforcement at home each night. We request that ECISD pay Ms. Myerly (when she is able to start her school up again), pay us for transporting Aleczander to homeschool and therapies, and agree to meet with us every three months to provide information about progress on goals.
As we told you in the 8.14.19 Educational Diagnostician’s report, with this level of intensity, we believe that Aleczander can grow two grade levels per year. Our goal, articulated to you last August, was to have him ready for age appropriate curriculum in two school years. Given the enforced closing of Ms. Myerly’s school and the ECISD continued denial of ANY SE services, likely we will not make this goal, but, as your assessment team can tell you, Aleczander is a dedicated learner and works very very hard. We are very optimistic about his future and request that you join us in supporting our son
Parent / IEP Team Member