New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 173483

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 16, 2018

Actual Record Closed Date: January 17, 2019

Hearing Officer: Elizabeth Hill, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 16, 2018

ESQ., Attorney — Student

Parents

BCBA, Director, — Student

Student

District Representative — DOE

A. INTROD CTION

On June 25, 2018, the New York City Department of Education (“DOE” or

“Respondent”) appointed me to act as the Impartial Hearing Officer (“IHO”) in this case, which is brought under the federal Individuals with Disabilities Education Act, 20 USC §1400 et seq. (“IDEA”), by (“Petitioner”) through his mother, . (“the Parent”) The Parent requested this Impartial Hearing by filing a Due Process Complaint (“DPC”) with the DOE on May 24, 2018. (Ex. A) Petitioner was represented at the hearing by his attorney, , Esq. Respondent was represented by of the New York City Department of Education.

Petitioner is presently and he attends . He attended public school throughout the school years at issue. He has been diagnosed with autism spectrum disorder, language disorder, specific learning disorders in reading, writing and math, developmental coordination disorder, and attention deficit hyperactivity disorder.

(T. 79, Ex. S) During the 2015-2016, 2017-2018 school year, he was classified as having

“speech-language impairment”. (Ex. D) During the 2018-2019 school year, he was classified as having “Autism”. (Exs. B, C)

B. CLAIMS & REQ ESTS FOR RELIEF

Petitioner claims that the IDEA was violated when he was denied a free, appropriate, public education (“FAPE”) during the 2015-2016, 2016-2017, 2017-2018, and 2018-2019 school years. (Ex. A) As relief, he seeks a finding that FAPE has been denied, placement in a more specialized program in a non-public school, funding for several independent educational evaluations, an order that the Committee on Special Education (“CSE”) reconvene, consider the evaluations and mandate a more narrowly tailored program, a twelve-month program, home and school-based Applied Behavior Analysis, (“ABA”), counseling, and parent training, a functional behavioral assessment,

(“FBA”) a Behavior Intervention Plan, (“BIP”) and compensatory education in the form of one-to-one academic instruction and several related services. He also seeks his educational records for 2014-2015 and the school years at issue.

I am limited to consideration of the claims stated. “The party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial due process hearing that were not raised in the [due process complaint], unless the other party agrees otherwise.” 8 NYCRR §200.5(j)(1)(ii) There was no agreement to recognize other claims.

C. FINDINGS OF FACT

I find the facts in this case to be as stated in Sections A and B above, and in the Decision, Section D below.

D. DECISION

1. RESPONDENT IS IN DEFA LT.

Respondent did not present any evidence and is therefore in default. Accordingly, Petitioner need only plead a rima facie case to prevail. He does not need to prove his case.

“Willful” default is an intentional failure to respond to litigation. Fed. Rules of Civ.

Proc., Rules 55(c) and 60(b); In re OCA, Inc., 551 F.3d 359 (5th Cir. 2008). Respondent here “offer[s] no o osing evidence,... This is an inadequate defense, and should now reci itate… [a] default judgment against [Res ondent]”. Walsh v. Comey, et al., 2015 WL 10322783 (D.D.C.) (emphasis added) (citing Tolan v Cotton 13 U.S. 551 (2014) and

Anderson v. Liberty Lobby, Inc., 477 U. S. 242 (1986)).

“[A]… court's inherent authority extends to default judgments.” She herd v. Am.

Broad. Cos., 62 F.3d 1469, 1472 (D.C. Cir. 1995); see generally, Chambers v NASCO, 501 U.S. 32, at 43-46 (1991)(describing extent of inherent judicial authority) A hearing officer’s ability to award relief is coextensive with that of a court. Cocores v. Portsmouth

Sch. Dist., 18 IDELR 461(D.N.H. 1991); see also: Forrest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009) (A hearing officer has broad powers and discretion to manage the hearing process under the IDEA.) Further, there is nothing in the IDEA or its regulations that prohibits a hearing officer from making determinations on procedural matters, such as default, not addressed in the Act or its regulations, so long as such determinations are made in a manner that is consistent with a parent’s or a public agency’s right to a timely due p ocess hea ing. Analysis and Comments to the Regulations, Federal Register, Vol. 71, No. 156, Page 46704 (August 14, 2006). In short, a hearing officer may enter a default judgment where, as here, the party offers no opposing evidence. FRCP 55(a)

(“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.”) A default judgment may be entered sua s onte. Pecarsky

v. Galaxiworld.com Ltd., 249 F.3d 167, 174 (2d Cir.2001) Accordingly, I find

Respondent in default.

,

2. THE STAT TE OF LIMITATIONS IS NOT TOLLED.

Petitioner pleads claims based on the Individualized Education Programs (“IEP”)

dated March 30, 2015 (Ex. E), March 13, 2017 (Ex. D), April 23, 2018 (Ex. C), August 10, 2018, (Ex. B) and on a missing IEP for the 2016-2017 school year. (Ex. A) The statute of limitations in an IDEA case is two years from the date of filing. 20 USC

§1415(f)(3)(C), 8 NYCRR §200.5(j)(l)(i) The Due Process Complaint was filed on May 24, 2018. Therefore, the statute bars claims arising before May 24, 2016. Accordingly, claims based on the May 30, 2015 IEP (Ex. E) are barred. Claims based on the missing

IEP are not barred because Respondent, who has the burden of proof, did not prove the date of the IEP. See, N.Y. Education Law §4404(1)(c)^[1]

Petitioner claims that the statute of limitations was tolled, permitting consideration of these two IEPS, because the prior written notices for the 2015-2016 and 2016-2017 school years were inadequate. (Ex. A-11) However, Petitioner cites no law in support of the proposition that an inadequate prior written notice tolls the statute of limitations. So claims based on the March 30, 2015 IEP (Ex. E) are barred. ^[2]

3. THE LEGAL FRAMEWORK FOR ASSESSING FAPE.

The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free, appropriate, public education… that emphasizes special education and related services designed to meet their unique needs.” Bd. of Educ. v.

Rowley, 458 U.S. 176, 179-91 (1982). A "reasonableness" standard governs the provision of special education to eligible students with disabilities. Id. “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”. Endrew F. v.

Douglas County School District, 137 S.Ct. 988, 999 (2017). An assessment of FAPE is made on the information available to the IEP team at the time of drafting. R.E. v. New

York City De ’t of Educ., 694 F.3d 167, 185-86 (2d Cir. 2012), cert. denied, 133 S. Ct.

2802 (2013) (“An IEP must be evaluated prospectively as of the time of its drafting.”)

The burden of proof on the propriety of an IEP is on the DOE. N.Y. Education Law §4404(1)(c). While the standard of proof is ordinarily a preponderance of the evidence, in the case of default, Petitioner need only plead these claims.

Petitioner pleads that he was denied FAPE by the missing IEP and by the three subsequent IEPs (Exs. B, C, D) all of which placed him in a class with twelve students, one teacher and one paraprofessional (“12:1+1”) when he should have been in a smaller classroom.

4. PETITIONER PLEADS DENIAL OF FAPE D RING THE

2016-2017 SCHOOL YEAR.

No IEP for the 2016-2017 school year was put into evidence. Nor was there any testimony regarding one. Where there is no IEP, there is no “IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”. Endrew F., su ra Accordingly, I must find that there was no FAPE during the 20162017 school year.

5. PETITIONER PLEADS DENIAL OF FAPE D RING THE

2017-2018 AND 2018-2019 SCHOOL YEARS.

Petitioner pleads that his placement in a 12:1+1 classroom during the 2017-2018 and 2018-2019 school years denied him FAPE because he had intensive management needs requiring a smaller classroom. (Ex. A) The maximum class size for “students whose management needs are determined to be highly intensive and requiring a high degree of individualized attention and intervention shall not exceed six students with one or more supplementary school personnel…” 8 NYCRR §200.6(h) Petitioner claims that his inattentiveness, social skills deficits and academic delays required highly intensive management. (Ex. A-6) Petitioner adequately pleads this claim. (Ex. A) He pleads that the Committee on Special Education (“CSE”) was remiss in placing him in a 12:1+1 classroom given that educational records showed his “attentional issues and social skill deficits, as well as his academic delays… have negatively impacted his learning.” (Ex. A-6)

In addition to adequate pleading, there is evidence that supports the claim that this information was available to the CSE at the time of their March 13, 2017, April 23, 2018 and August 10, 2018 meetings. For example, Petitioner’s February 3, 2017 Report Card (Ex. DD) states that he “requires constant supervision to remain focused and complete tasks” and “assignments are poorly done”. Further, the April 23, 2018 IEP (Ex. C) states that he has “deficits in the realm of verbal expression, word knowledge, concept formation, and listening comprehension” as well as in the ability to retrieve information to form answers. In addition, he had social difficulties, specifically, he was withdrawn in some social settings; he did not understand the social cues of his peers; and he may not have been included in their conversations. (Ex.C-3)

Looking again to the proof, it should be noted that the mandates for the 2017- 2018 and 2018-2019 school years (Exs. B, C and D) were essentially the same despite the fact that Petitioner’s “instructional levels” indicated that he had made absolutely no progress in math during the first of these years. He had also made no progress relative to his grade level in reading. He was reading at a third-grade level while in fourth grade and at a fourth-grade level while in fifth grade. This evidence indicates a denial of FAPE during the 2018-2019 school year.

In addition, the mandates for the 2015-2016 and 2017-2018 school years (Exs. E & D) remained essentially the same despite the fact that Petitioner had made no relative gains during the two-year period. His instructional level in reading and math in second-grade was first-grade level and his instructional level in reading and math in fourth-grade was third-grade level. Here too, the proof shows a denial of FAPE. Advancement from grade to grade does not always rise to the level of FAPE. Endrew F., su ra This is particularly true where the child’s instructional level continues to lag a year behind his grade.

In sum, Petitioner adequately pleads (and proves) that the 12:1+1 classroom was too large for him and that Respondent therefore did not provide him with an “IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”. Endrew F., su ra Accordingly, he adequately pleads that he was denied FAPE during the 2017-2018 and 2018-2019 school years.

6. PETITIONER IS ENTITLED TO COMPENSATORY

ED CATION.

Petitioner seeks compensatory education to compensate for his academic and developmental losses during the years he was denied FAPE. The IDEA empowers courts [and hearing officers] with the broad authority to fashion appropriate relief, considering equitable factors, which will effectuate the purposes of IDEA. Sch. Comm. of Burlington

v. De ’t of Educ., 471 U.S. 359 (1985) Where a school system fails to provide special education or related services to a disabled student, the student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). An award of compensatory education “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d at 518. This standard “carries a qualitative rather than quantitative focus,” and must be applied with “[f]lexibility rather than rigidity.” Reid, 401 F.3d at 524. While

Petitioner need only state his claims, given Respondent’s default, he must still prove the appropriate relief, as set forth above. Cement and Concrete Workers, su ra.

As compensatory education, Petitioner seeks thirty-five hours per week, over a forty-six-week school year, of one-to-one Applied Behavior Analysis, to be used on a push-in basis as well as after school. (Ex. A) The proof supports different relief.

Petitioner presented the testimony of in support of remedial academic services. has a Master’s degree in Education and has done advanced course work in Applied Behavior Analysis. (“ABA”) She is certified in special education, elementary education and early childhood education. She is a Board-Certified Behavior Analyst and a licensed New York State Behavior Analyst. (T. 17) She is the

Director of , an agency which provides behavior therapy, parent training and academic remediation, among other things. (Ex. KK) She assessed Petitioner’s academic needs though a review of the academic and related services records admitted in evidence.

(T. 19)

testified that Petitioner needs seven hundred hours of one-to-one academic remediation to reach the fifth-grade level. (T. 53-55, 66) By affidavit, (Ex.

KK) she testified that such remediation should be done using ABA or another research-based methodology. She also increased the recommended hours from seven hundred to seven hundred and twenty. (Ex. KK) There is no specification as to whether remediation should take place during school hours. Accordingly, I find that Petitioner is entitled to seven hundred and twenty hours of one-to-one academic remediation using ABA or another research-based methodology. By affidavit, testified that she charges

$126.00 per hour for academic remediation. (Ex. KK) I find that Respondent must compensate at that rate.

Petitioner also seeks a functional behavioral analysis. (“FBA”)

testified that a FBA should have been performed on Petitioner and that he would likely require a Behavior Intervention Plan. (“BIP”) (T. 56-57, 59) Accordingly, I find that Petitioner is entitled to a FBA and BIP.

testified that she charges $1,200.00 to provide a FBA.^[3] (Ex. KK) And she testified that she charges $450.00 for a BIP. (Ex. KK) At the hearing, she testified that he cha ges we e within the ange of the usual and customa y cha ges fo these se vices. (T. 61) I find that Respondent shall compensate Petitione at these prices.

Petitioner seeks compensatory education in the form of related services as well.

(Ex. A) His claim relies on the testimony of .

conducted a neuropsychological evaluation of Petitioner. (Ex. S) has a Ph.D. in Clinical Psychology, post-doctoral training, board certification in neuropsychology and pediatric psychology, and he is a New York State-licensed and school . (T. 67)

(T. 68)

After evaluation of Petitioner’s educational and medical records as well as extensive testing of Petitioner himself, recommended that Petitioner receive speech-language and occupational therapy, as well as counseling. (Ex. S) Therefore, it is presumed that Petitioner required these services over the years at issue and should be compensated if they were lacking.

But does not recommend the amount of related services required.

(See Ex. S, T. 85) In 2018-2019, Petitioner received all of these services. (Exs. B, C)

There is no showing that the services rendered were not adequate. Accordingly, I do not award additional services.

In the 2017-2018 school year, Petitioner received speech-language and occupational therapy, but he did not receive counseling. (Ex. D). The missing 2016-2017 IEP cannot prove that counseling was provided. Accordingly, I find that Petitioner should be compensated for two school years4 of counseling, at the rate of one session per week.

I award this amount based on the only assessment of the amount of Petitioner’s need, the March 13, 2017 IEP.

The missing 2016-2017 IEP cannot prove that occupational or speech-language therapy were provided. Accordingly, I award a year of each, at the frequency of one

4 By years, I mean the regular school year. There is no evidence that a twelve-month year is required. The only mention of an extended school year is in the testimony of and she only states that she calculated remedial hours based on a twelve-month year. (T. 63) She does not establish that Petitioner needs an extended school year.

forty-five-minute session of occupational therapy per week and three thirty-minute speech-language therapy sessions per week, two of which are group sessions. I take this these frequencies from the most recent IEP (Ex. B) as best representing the DOE’s estimation of Petitioner’s need.

7. PETITIONER IS ENTITLED TO INDEPENDENT

ED CATIONAL EVAL ATIONS.

Petitioner seeks several independent educational evaluations (“IEE”s) based on her disagreement with DOE evaluations, specifically the occupational therapy, physical therapy, speech-language therapy, psychoeducational, and assistive technology evaluations, (Exs. U-Y) conducted in May and July 2018. (Ex. A-12) Although this relief was initially sought on an interim basis, it was not pursued at that time. Nevertheless I address it, as it is stated as a claim in the Due Process Complaint.

Where the Parent disagrees with an evaluation obtained by the school district, the parent has the right to obtain an IEE at public expense. 8 NYCRR §200.5(g) (1) Here, Petitioner disagreed with several evaluations. By the Due Process Complaint, the Parent informed Respondent of the need for IEEs, as required under 8 NYCRR §200.5(g). Such notice is sufficient. A lication of a Student with a Disability, SRO Appeal No. 05-041

Accordingly, the Parent is entitled to the IEEs at public expense.

Under federal law, “Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent…” 34 CFR §300.502 (a)(1)(ii) (emphasis added). In addition, the Chancellor’s regulations expressly provide that, “A school district may not impose additional conditions… related to obtaining an independent educational evaluation at public expense.” 8 NYCRR §200.5(g)(ii) In other words, Respondent may not dictate the provider or impose a limit on the costs of the IEEs. In sum, Petitioner is entitled to occupational therapy, physical therapy, speech-language therapy, psychoeducational, and assistive technology evaluations at DOE expense. In response to the psychoeducational evaluation, a neuropsychological evaluation compensate Petitioner or for that amount, depending on whether

Petitioner has already paid the doctor.

Petitioner also seeks an autism assessment. (Ex. A) This evaluation should be awarded because the DOE must evaluate a child in all areas of suspected disability. 20 USC §1414(a)(2) Since the DOE has classified the child as having Autism, an assessment is in order.

Petitioner also seeks an ABA assessment. Presumably, the ABA assessment does not evaluate an area of disability. Rather, it evaluates the suitability of ABA methodology for him. There is no basis for requiring DOE to fund that assessment.

8. THE COMMITTEE ON SPECIAL ED CATION SHALL

RECONVENE TO CONSIDER THE NEW

EVAL ATIONS.

Petitioner asks that the CSE reconvene to consider the new evaluations and change Petitioner’s placement accordingly. (Ex. A-12) Petitioner also lists the changes which should be made. Petitioner asks that the CSE consider a non-public school, a twelve-month program, home-based and school-based ABA, counseling, and parent training. He also asks that the CSE develop more meaningful IEP goals.

The CSE is required to reconvene to consider the new IEEs. S.S. v. Bd. of Educ.

Town of Ridgefield, 10 F.3d 87 (2d Cir. 1993) And I find that in addition, they must expressly consider the items identified by Petitioner. But while I may order the CSE to reconvene and consider certain issues, an Impartial Hearing Officer is not empowered to order the CSE to make specific recommendations. Town of Ridgefield, su ra. (IEP team not required to adopt findings of independent educational evaluation). However, I order that the CSE shall expressly consider the IEEs and requested items in a writing to be provided to the Parent.

9. PETITIONER’S ED CATIONAL RECORDS M ST BE

PROD CED.

Petitioner pleads that he requested his educational records and that they have not been provided. (Ex. A) He requested these records prior to the hearing, in the posture of Case No. 173483 discovery. Certainly, Respondent was required to produce these records as discovery.

Respondent should not be permitted to avoid that responsibility. Moreover, Petitioner is certainly entitled to his own records. Accordingly, I order Respondent to produce these records now, but I limit the scope of the requested production so as not to make this obligation unnecessarily burdensome and so as to prevent identification of the other students in Petitioner’s class. Respondent must produce:

a. Teacher’s notes regarding Petitioner;

b. IEPs created as of September 2014 through the present;

c. Session notes from speech-language therapy as of September 2014 through the present;

d. A class profile of Petitioner’s classroom for the 2017-2018 school year, limited to an identification of the number of students with a given type of disorder;

e. Report cards as of the 2014-2015 school year through the present;

f. Notes of the CSE meetings regarding Petitioner as of September 2016 through the present; and

g. Copies of all documents regarding Petitioner kept in SESSIS as of September 2014 through the present.

Petitioner’s counsel asks that these records be translated into ”. s actually speak . In any event, the evidence indicates that the Parent speaks

English. She attended the hearing and testified without a translator. She also testified that she read and understood counsel’s letter requesting independent educational evaluations, which was written in English.

ORDER

1. Respondent shall fund seven hundred and twenty hours of one-to-one academic remediation by for Petitioner at the rate of $126.00 per hour.

Payment shall be made to or Petitioner within thirty days of receipt of an invoice or proof of payment.

2. Respondent shall fund a functional behavioral assessment by for Petitioner at the cost of $1,200.00. Payment shall be made to or

Petitioner within thirty days of receipt of the invoice or proof of payment.

3. Respondent shall fund a behavior intervention plan by for Petitioner at the cost of $450.00. Payment shall be made to or Petitioner within thirty days of receipt of the invoice or proof of payment.

4. Respondent shall fund two school years5 of counseling at the frequency of once per week and one school year of speech-language and occupation therapy at the frequencies of three thirty-minute speech-language sessions per week, with two being group sessions, and one forty-five-minute occupational therapy session per week. Payment shall be made to the provider or Petitioner within thirty days of receipt of an invoice or proof of payment.

5. Respondent shall fund the neuropsychological evaluation of Petitioner by at the cost of $4,500.00. Payment shall be made to or Petitioner within thirty days of receipt of the invoice or proof of payment.

6. Respondent shall fund occupational therapy, physical therapy, speech-language therapy, and assistive technology evaluations and an autism assessment for Petitioner. Payment shall be made to the provider or Petitioner within thirty days of receipt of an invoice or proof of payment.

7. Petitioner shall provide Respondent with copies of the reports on all the evaluations listed in (5) and (6) above within thirty days of receipt.

8. The Committee on Special Education shall reconvene to consider, expressly and in writing to be provided to the Parent, the results of the occupational therapy, physical therapy, speech-language therapy, assistive technology, and neuropsychological evaluations and autism assessment within thirty days of receipt of the final evaluation. At that time, the CSE shall also expressly consider in a writing to be provided to the Parent, provision of a non-public school, a twelve-month program, home-based and school-based ABA, counseling, and parent training.

By “school year” I mean the ordinary school year and not the extended school year.

9. Respondent shall produce to Petitioner within sixty days of this Order:

a. Teacher’s notes regarding Petitioner;

b. IEPs created as of September 2014 through the present;

c. Session notes from speech-language therapy as of September 2014 through the present;

d. A class profile of Petitioner’s classroom for the 2017-2018 school year, limited to an identification of the number of students with a given type of disorder;

e. Report cards as of the 2014-2015 school year through the present;

f. Notes of the CSE meetings regarding Petitioner as of September 2016 through the present; and

g. Copies of all documents regarding Petitioner kept in SESSIS as of September 2014 through the present

SO ORDERED,

Dated: February 12, 2019

ELIZABETH HILL, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

Exhibit Number

Number Exhibit Date of Pages

P-A Demand for Due Process Hearing 05/24/18 15

INDIVID ALIZED ED CATION PROGRAM

P-B IEP 08/10/18 21

P-C IEP 04/23/18 14

P-D IEP 03/13/17 21

P-E IEP 03/20/15 16

COMMITTEE ON SPECIAL ED CATION & SCHOOL CORRESPONDENCE

P-J IEE Request Letter 05/23/18 2

EVAL ATIONS & REPORTS

P-S Neuropsychological Evaluation 10/29/18 45

P-T Teacher Report 10/11/18 3

P-U OT Evaluation of Function & Participation 07/18/18 8

P-V PT Evaluation of Function & Participation 07/18/18 5

P-W Speech-Language Evaluation 07/18/18 7

P-X Assistive Technology Evaluation 05/18/18 9

P-Y Psychoeducational Evaluation 05/01/18 6

P-Z Evaluation 12/28/17 3

P-AA PT Annual Review Plan 02/24/15 3

REPORT CARDS & PROGRESS REPORTS

P-CC Report Card MP 1 2017-2018 2

P-DD Report Card 02/03/17 1

P-EE Report Card Final MP 2015-2016 1

P-FF Report Card MP 2 2015-2016 2

P-GG Report Card MP 2 2014-2015 2

ADDITIONAL DOC MENTATION

P-KK Affidavit 06/29/18 3

P- Affidavit 06/28/18 1

Footnotes

[1] The complete citation is: N.Y. Educ. Law, Ch.16, Title VI, Article 89, Section 4404(1)(c), but I will refer to the Section numbers under Article 89 only.

[2] Petitioner also seeks to expand the statute of limitations by making a claim under The Rehabilitation Act of 1973, Section 504, which has a three-year statute of limitations. However, Petitioner fails to plead a rima facie case. She does not specify the actions which would be the basis of either intentional discrimination or disparate impact claims. (See, Alexander v. Choate, 469 US 287 (1985) and Teahan v. Metro-North Commuter R. Co., 951 F.2d 511 (2d Cir. 1991) The undifferentiated facts pled in the complaint fail to state these claims.

[3] During her testimony at the hearing, quoted $1,500.00 as the cost of a FBA. (T. 59) I choose her lower quote.