PLAAFPs are supposed to be the Foundation of every IEP

Today’s lesson to parents and advocates: No matter how many times the members of your child’s IEP team tell you that “they’ve got your child’s best interests at heart,” you are advised not to believe them. At best, go ahead and trust, but always verify. By their deeds, not their words, will you know them.

I should have known this long before I began advocating for Aleczander. Shirley, a friend of mine, now deceased God rest her soul, retired as an elementary principal from NEISD. After serving as administration representative for no telling how many ARD meetings, she’d finally had enough of hearing SE directors reassure parents in this manner. After an ARD meeting one day, out of the hearing of parents, Shirley said to the NEISD SE Director, “I’m sick of listening to you lie to parents. You don’t care about what’s good for the child, you only care about what’s good for special education. So I’m putting you on notice; if you ever utter those words in my presence again, I’m going to repeat to you at the meeting exactly what I’ve just said.” Shirley had already announced her retirement so there wasn’t anyway for the district to retaliate against her directly, however her daughter, a 25-year veteran NEISD teacher whose annual reviews had always been exemplary, didn’t fare as well. Her contract wasn’t renewed. Quick update, we truly do serve a risen Lord. Shirley’s daughter immediately found another job, one which paid her more, provided improved working conditions at a charter school. Praise God!

I learned this lesson, don’t trust what public school officials, most especially SE lawyers tell you, the hard way, after I filed a mediation request, a SE complaint, an OCR complaint and a 2nd mediation request during the summer after Aleczander’s disastrous first grade year at ECISD. For any of you who’ve been advocating for more than ten minutes, you can likely guess what happened with that SE complaint. TEA investigated by asking the district for documentation of the special education services provided to Aleczander for the 2014-15 school year. As an aside, I filed that complaint upon the advice of a lawyer who said, “file away, the districts hate it when you do, it creates all sort of paperwork problems for them.” What the lawyer didn’t tell me was that SE complaints are futile and a waste of time. Consider this a word to the wise. If they’ve got a jugular vein, which I seriously doubt, the way to go for the jugular is to file a due process. And don’t even bother with an OCR complaint until after you’ve filed and lost a due process claim. If you do, OCR will treat you really nicely, consume a lot of your time asking for evidence, and then tell you that you have a great case, but that they can’t help you until you’ve exhausted all administrative remedies, which means you have to have gone to due process and lost. 

In response to the SE Complaint that I filed, TEA concluded that ECISD Special Educators hadn’t provided Aleczander the services that the district had told the parents that they’d add to his IEP at the 12.8.15 ARD. However, as the SE teachers had reported that Aleczander had mastered all of his goals and the first grade report card contained only passing grades, and as the district was sending him on to 2nd grade, TEA concluded their investigation with this outrageous penalty: ECISD needs to train its teachers how to keep better records; the student however has incurred no actual harm so no compensatory services are indicated. Gag me with a gnat, this is what is going to happen to you if you allow the district to produce an IEP that contains no PLAAFs.

In January 2016, I didn’t know enough to challenge the IEP based upon the fact that it contained no present levels of performance that could be used to measure progress at the first annual review. In my own defense, at that time I was only an educational diagnostician providing pro bono evaluation and district special education IEP and Assessment analysis services. In 2016 I still believed that the district, once it realized that the IEP was in error, would accept the parent’s expert witness reports and provide Aleczander with appropriate meaningful educational services.

Perhaps we can conclude that I wasn’t 100% stupid, albeit I was incredibly naive, with the result being that I was only 50% stupid. Why I expected my former SE colleagues to play nice with the parents after essentially being forced out of my job because I wouldn’t lie to parents of children that I was evaluating didn’t make a whole lot of sense then, today it doesn’t make any sense at all. It’s not as if I was totally incompetent as an advocate; I made a lot of noise, created a lot of smoke, I’ll give myself that. Certainly I generated a whole lot of billable hours for Elvin Houston, the attorney advising the district how to legally deny Aleczander an appropriate, meaningful IEP. You’d think that, based upon that fact alone, he’d have been my biggest fan. You’d be completely wrong in that assumption however. Elvin didn’t even pretend to like me, which you can clearly hear on the audio of the iMovie that I’ve created, but not yet posted, entitled “Lawyer participates in IEP team meetings time after time, how is this even legal?”

On June 2, 2016, 38 minutes prior to the continuation of Aleczander’s  5.2.16 first annual review (the one that had lasted 5 hours before being discontinued for one week as we couldn’t get past me arguing that the goals weren’t appropriate as they weren’t based upon his present levels of performance nor were they measurable), I submitted the parent’s 29-page disagreement document articulating our concerns with the Draft IEP for second grade. Mary E, then director and my former friend, acknowledged receipt of that document, on tape, at the 6.2.2016 IEP team meeting by saying, “well, we appreciate your information, but it would have been nice if you’d emailed it in earlier, so I could have had time to look it over.” This from the woman who had written me up repeatedly for documenting the things that she had told me to do, as well as the things that she instructed me NOT to do, in emails to her that I copied to the other members of the ECISD assessment staff. My mistake back then, I should have been copying the superintendent, Mary’s boss, on those emails.

Janice W, the principal, was clearly upset when she walked into the conference room on her campus. “I thought the mediation discussion was supposed to be confidential,” she said. Ms. W and I had also been friends as well as colleagues at one time and I understood that she was trying hard not to be forced into early retirement. Still, I couldn’t allow her to avoid conflict on Aleczander’s back. I know she understood what I was doing and perhaps  she even respected me for my actions. Still, we weren’t going to be able to remain friends at present, perhaps not ever again.

“I didn’t sign anything, did you?” I replied. Ms. W, like me, was a former special education teacher, although she had been a principal since I’d known her. She’d been great at both jobs, and, also like me, was ignorant of the litigious side of special education. “Oh,” she said. Mary looked a little shell-shocked, probably because I’d entered into Aleczander’s SE records what the TEA mediator had told me and Eva at the previous week’s failed attempt to mediate the school’s diagnosis and proposed services.

Perhaps because I was such a newbie, Lucius Bunton, Jr., the mediator TEA sent down from Austin, cut me some slack on May 24, 2016 when he unsuccessfully mediated our disagreement points with the ECISD’s treatment of Aleczander. Lucius didn’t make that “mistake” the second time he trundled down to San Antonio to attempt to resolve our complaints against the ECISD. He had, however, done Aleczander a tremendous service when, on May 24, 2016, after speaking with us, the district staff, us again, the district staff a 2nd time, he returned to the office where we waited and gave Eva this advice. “Save your son, get him out of here, go to a charter school. This place is corrupt, but then they all are, it’s not just the schools, it’s the city, the county, you name it.”

Lucius gave me some good advice that day as well. “Don’t think you’re going to change the district, at least you’re not going to change anything out here in time to save this child.” Belatedly I’d like to thank Lucius for his honesty. I didn’t appreciate it then; four years later I totally get what he was saying. The district continues, upon the advice of $350/hourly Walsh Gallegoes attorneys, to advise the district to ignore special education law that began in 1975 as the Education for All Handicapped Children Act and is now known as IDEA 2004. Call me naive or stupid or whatever you wish, this still dumbfounds me. Why would a school district pay lawyers big bucks to help school districts avoid teaching children with dyslexia to read and write? I mean, isn’t a public school supposed to want to each kids to read and write?

On June 2, 2016, Mary E was clearly not happy with me, her former employee. And I still wasn’t seeing clearly enough or understanding enough of the malfeasance that I was seeing to effectively advocate for Aleczander. That day I let Aleczander’s IEP team get away with not actually discussing the points made in the 29-page disagreement with the IEP document that I’d emailed Mary E just 38 minutes before the meeting was scheduled to begin. This is called ignoring a parent’s information, and makes a mockery of the lip service that this school district continues to pay to their ostensible desire to include the parent in all educational decisions about their child’s IEP.

Aleczander’s annual review continued with the district running the show, acting as if they were the experts and the parent was incompetent. The parent’s information continued to be ignored, leaving the parent with nothing to do other than check disagree at the end of the meeting. As this was our second disagree annual review meeting, our only resource at that point was to file another mediation request, which we did to no avail. Bear in mind that Aleczander had at this point received a year of SE services in which he had severely regressed, a regression that was documented by the district’s performance data, and yet the district continued to skate accountability. My mistake back then was that I didn’t file a due process immediately based upon challenges to the IEP related to the fact that it contained no verifiable information about present levels of performance. I kept on arguing with the diagnosis, which I now understand to be irrelevant. In the end, it doesn’t matter what a school calls the child, what matters is what the district teaches the child. I should have known better than that.

Aleczander’s FIE, (4.18.15 ECISD FIE), concludes that academic levels are “all below average” while his cognitive processing skills are summarized to be “average.” No classroom levels of academic or functional performance are included in the FIE or documented in the initial placement ARD (see 5.19.15 Initial Placement ARD) that placed Aleczander in a special education program known as “inclusion.” As best I have been able to ascertain, inclusion (as opposed to a resource classroom where alternative curriculum could be used), remains the only SE option for LD students at Sinclair Elementary five years later.

How do I know this? After the district conducted Aleczander’s 8.14.19 REED/EVALUATION meeting, I called and spoke with Stacey Johnston, Sinclair Principal. Ms Johnston told me that Sinclair currently had no SE resource room for reading disabled students, but that she had been told by SE that if the school needed a setting for SE students qualified for Orton-Gillingham dyslexia instruction other than the 504 Dyslexia classroom, one could be created. To be entirely sure of the information that I was being provided, I rephrased my question, “So you don’t have SE resource, only inclusion where SE teachers go into regular classrooms at the present time?” Her answer was precise, “we’ve been told the district could create a resource room if we had a student who needed such services.”

So, continuing under the guidance and tutelage of $350/hour SE attorneys (ECISD employs Walsh Gallegoes attorneys Eric Rodriguez , John Muniz, and Elvin Houston), this particular leopard has in no way, shape, form or fashion changed its spots. ECISD is unable to provide a child needing an alternate reading curriculum with that service because it does not have either a qualified teacher or an appropriate setting. Why, I wonder? That district used to provide these services, other districts still do . . . what changed? When I began working SE in Texas, districts didn’t have SE attorneys, now many of them do. Interesting factoid, but not conclusive evidence I suppose. Lesson learned: it doesn’t matter what you know or suspect, at the end of the day, all that matters is what you can prove. Advocates and parents take note. Document, document, document. And, oh yeah, learn legal requirements and case law, that’s really important too.

In order to circumvent IDEA, SE appraisal staff and SE instructional staff are going to have to comply with district policies. In other words, LSSPs, ED DIAGs, Speech Paths, and SE teachers must compromise their ethics and values, this is obviously assuming that the individuals in question possess these attributes. I now understand that the EICSD’s lead LSSP (Iliana J-W, mentioned by LSSP Yvonne R on the 12.17.15 meeting audio when the parent and I met with the SE Director to obtain consent for additional services) instructed the intern who conducted Aleczander’s FIE to summarize her assessment data in an entirely misleading and false way in order to avoid having to qualify Aleczander as eligible for SE services as a student with a specific learning disability. Clearly, this was at the direction of SE administrators under the leadership of Walsh Gallegoes attorneys.

The whole world now knows, or should know, that beginning in 2004  Texas public school districts began denying SE services to handicapped children in order to keep the number of students enrolled in special education at 8.5% or less than the total number of students enrolled in the district. Historically, 14% of American children require SE services in order to learn to read, write and talk in a manner commiserate with their own unique circumstances. In the case of many SE students such as Aleczander, if SE interventions are provided in a timely manner, they will achieve academic competency such that these LD students graduate from high school reading and writing on grade level.

Hence I can make the case for delay being actual denial. Neuroplasticity, also known as brain plasticity, or neural plasticity, is the ability of the brain to change continuously throughout an individual’s life, e.g., brain activity associated with a given function can be transferred to a different location, the proportion of grey matter can change and synapses may strengthen or weaken over time. It is the case that, in regards to many academic skills and ECISD’s policy of waiting for a student to fail before the child is either assessed or provided with SE interventions, the window of opportunity will have closed long before the child’s failure to master grade level curriculum has resulted in an FIE, much less any intervention services.

Aleczander was first assessed for special education services as he ended his first year as an ECISD kindergarten student, two years after the parents sought to transfer their son into prekindergarten as a special needs student previously enrolled in the Odessa ISD PPCD/PreK program. This was illegal for ECISD to do, however due to statute of limitations regulations imposed by our legal system, by the time I became Aleczander’s advocate, ECISD’s denial of services to a previously qualified student was no longer litigable. And, quite frankly, for those of you familiar with this case, it now appears likely that ECISD is going to skate on this issue a second time. On 8.14.19 twelve staff members met with Eva and me to conduct Aleczander’s 3 year re-evaluation for SE services. At that meeting, both the ECISD SE Director, Nina Pugh, and the ECISD SE Lawyer, Eric Rodriguez, stated that Aleczander was not entitled to a FAPE because he was no longer enrolled as an SE student.

This is clearly both erroneous and illegal as, at that time, Aleczander had a current Other Health Impaired eligibility report from the pediatric neurologist who had evaluated him, at the District’s expense, in September 2016 (OHI, Dr. Jerry Tomasovic 11.1.16). As a result of multiple consents to release information that the parent signed on 8.14.19, the district had obtained records from private speech, OT, and PT services that had been treating Aleczander for the past two years. Each of these professionals clearly documented that Aleczander was making academic progress, however his skill development continued to be significantly impaired in comparison with his non-disabled peers. In addition, ECISD was in possession of a 2nd eligibility report under the OHI category  (September 2019) from Aleczander’s pediatrician, stating that the developmental dyspraxia, a congenital medical condition, hadn’t been miraculously cured.

Even so, the now ECISD director of SE, Nina Pugh, wrote to Eva on April 15, 2020 that the district possessed  no information indicating that Aleczander had any disability that might lead to a need for SE services. Go figure, she can’t be that stupid, can she? Maybe she’s naive, and believes what the lawyers tell her? If so, then we ought to feel sorry for her, and pray for her, because what she’s doing is so clearly wrong. She’s hurting kids, how can she not know this? She’s not a bad person, nothing at all like that. At the January 2017 proportionate share services meeting, Ms. Pugh stated, after I had turned the tape recording app off, that she very much respected and admired what I’d done for Aleczander and that she believed that under other circumstances we might have been friends. The good thing about that meeting was that there wasn’t a SE attorney present. Still, it was a very hard meeting. It turns out to have been the last time that I ever saw or spoke with Mary E. We talked a little bit, although I can’t recall any of our actual words. What I do remember is that we hugged, and watching her walk to her car, I could see that Mary E was crying.

Finally, a word about Response to Intervention, a program that was used by ECISD to deny Aleczander needed, and previously provided in another district, special education services. The US Education Department stated in a 2011 letter that “it has come to the attention of the Office of Special Education Programs (OSEP) that, in some instances, local educational agencies (LEAs) may be using Response to Intervention strategies to delay or deny a timely initial evaluation for children suspected of having a disability” (Memorandum to State Directors of Special Education, 2011). The memo states that while ED supports RtI initiatives and programs, “the use of RTI strategies cannot be used to delay or deny the provision of a full and individual evaluation,… to a child suspected of having a disability….” The memo also reiterates, as discussed above, that IDEA and its regulations currently “allow” the use of RtI data as part of the criteria for determining if a child has a specific LD, as opposed to mandating such an evaluation procedure. The memo therefore concludes that “it would be inconsistent with the evaluation provisions [of the IDEA regulations] for an LEA to reject a referral and delay provision of an initial evaluation on the basis that the child has not participated in an RTI framework” (see also City of Chicago Sch. Dist. 299, 2009, in which the Hearing Officer holds that “because RTI is a general education tool, districts cannot use it to delay disability identification in the face of parents’ requests for immediate formal testing for eligibility”).

The district’s FIE was conducted after an entire year during which the Kindergarten Teacher, the school principal, and the parent repeatedly asked Special Education for a full individual evaluation for Aleczander. During Aleczander’s kindergarten year, ECISD staff conducted five Response to Intervention Meetings, all of which were attended by Aleczander’s mother and in some cases his father. The first of the five 2014-15 kindergarten Response to Intervention (RtI) meetings was held on October 2014. The interventions provided, none of them documented as to any specific program, method, material, or educational intervention, were a behavior contract along with small group speech support. None of these “research-based interventions”, per the ECISD RtI documentation, was actually provided to the student. Per the 4.18.15 FIE, Aleczander did “show progress with these interventions but not what would have been expected when compared to his same age peers.” Therefore he was referred to special education for assessment in April 2015. I suppose it goes without saying that ECISD’s documentation that “some progress in speech articulation, receptive language, and oral expression and as well as the student’s ability to complete grade level reading, writing, and math, but not enough was observed” doesn’t constitute research-based materials and strategies that compare the progress Aleczander made to that of other struggling classmates who also were provided with interventions anticipatory of a special education referral.

To reiterate, when the IEP fails to include current valid research-based information about the child’s PLAAFPs, the IEP is, by definition defective. The educational treatment plan proposed by the district, agreed to by the parent, paid for by taxpayer dollars, has no verifiable foundation, therefore it is not measurable and constitutes an invalid contract between the district and parent for the provision of special education services to the child.

Most IEP teams use test scores on individually and group administered academic achievement tests as PLAAFPs as well as the child’s report card grades. Remember, the district is required to document that the child can’t achieve commiserate with his ability without special education in order to justify placing the student into special education programs. If the district hasn’t provided any research based interventions, then it has no clue as to how Aleczander would have done if they had actually provided an alternative program such as Handwriting Without Tears. Therefore, in Aleczander’s case, the ECISD had no basis for stating that they couldn’t teach him to write the letters of the alphabet prior to putting him in special education and giving him OT services.

What is horrifying for me to consider even today is the fact that not only were no alternative methods or materials used during Kindergarten RtI, but that, for one entire school year, while he deteriorated academically and functionally under special education auspices, Aleczander received NO alternative materials or methods. So what was special education doing? He had two SE teachers. They went into the classroom daily to help him in reading and math and reported to parents at the annual review that he had mastered his goals and therefore, by definition, was now speaking, reading, writing, and completing math assignments at the ending first grade level with 70% accuracy. This was lies, all lies. On May 2nd and again on June 2nd, when challenged by the parent’s expert witness transformed into inept advocate, Heather B, the SE reading inclusion teacher said, “Well, he reads to me and I can understand him even if no one else can.” Nicole S, the speech therapist, said, “he has all the sounds he needs, he needs to slow down and stretch out his words. And that nasty stutter he’s developed, what’s up with that? Something going on at home maybe?”

Takeaway here: The PLAAFPs are the foundation for everything else in the IEP. If the starting point of the IEP is fundamentally flawed, then everything that comes after that is flawed, too. The Katonah-Lewisboro (NY) School District simply copied the last year’s “PLAAFPs” into the new IEP, despite information that the child had made progress in all academic areas from the private placement the parents had secured the previous school year. The Second Circuit decision found that the child’s IEP “was likely to cause [the child] to regress or make only trivial advancement.” That particular school district’s fatal flaw cost it dearly. The Court ordered it to pay the child’s private placement tuition. It also had to pay the parents attorneys fees and expenses of over $156,976.00. In Aleczander’s case, the 8.14.19 REED populated by Eric Rodriguez after the actual meeting contains only the district’s previous assessment information prior to 2016-17 when Aleczander began attending a private school. None of the information provided by the parents at the 8.14.19 REED meeting is included in the District’s document purporting to be current levels of academic and functional performance.

That bit about getting your private school tuition and legal fees sounds good, doesn’t it, however a person would be short-sighted to overlook the fact that those parents had to file a due process claim in the administrative court to get this particular ball rolling. In our case, in Texas, this means that we file a TEA due process claim against the district. Yep, the same TEA administrative office that, beginning in 2004, told districts that it was going to cost them state and federal dollars if they qualified more than 8.5% of their students as eligible for SE services.

True fact: filing a due process claim against a district is only the beginning of the parent’s journey toward obtaining a FAPE for their child. My information is that, here in Texas, 95% of the due process claims end up settling out in mediation with the district. This happened to us when I extremely belatedly filed the first due claim against ECISD on Aleczander’s behalf (summer 2017). State law mandates that the terms of any TEA mediated agreement can’t be disclosed by the parents except as they need to do so in order to obtain services. My understanding is that most parents take the settlement offered by the district, paltry though it may be in comparison to the SE needs of the student, because “something is better than nothing.”

Should your TEA suit actually go on to a TEA hearing officer know this: over half of TEA’s hearing officers have never found in favor of the parent. That’s not good odds in my worldview. And, if a parent should actually win a due process case at the hearing, the district will appeal to state court, so the parent’s win is technically not yet a done deal. To secure and hold on to their win, the family will have to keep on paying legal fees until the district cries uncle or the case is affirmed by the Supreme Court. By that time this all happens, mom and dad are likely to be old and gray while the poor kid has aged out of public education system altogether.

So why are Aleczander’s parents and I still at this? Simple answer, I’m not sure. Perhaps because it’s the right thing to do? Or maybe it’s because the parents haven’t been able to move to a better district (San Antonio has some much better ISDs). Certainly move, vote with your feet, has been the suggestion of almost everyone familiar with our ongoing saga, including my husband. But we fight on, thankful that Aleczander is doing well even as he’s not getting the OT, PT, Speech, and Dyslexia therapy he needs to achieve academic competence commiserate with his own unique circumstances. This is all just so blatantly wrong, what ECISD has done to this little boy.  Aleczander was first diagnosed with the developmental coordination disorder that causes his dyslexia, dysgraphia, and oral motor disfluency when he was four years old. Congenital medical conditions that necessitate specialized educational interventions are often 100% fixable if the child receives appropriate interventions in a timely fashion. Why are they doing this? It can’t be just money can it? I’m not going to even hazard a guess on that one.

Bottom line, most likely we’re still at this because we’re not giving up on Aleczander. Enough said, wouldn’t you say?

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