New Rochelle’s Discrimination Against Mobility Impaired Students Continues, Despite Two Federal Agreements and a $26 Million Lawsuit

Written By: Robert Cox

NEW ROCHELLE, NY — In two federal investigations over the past two years, the City School District of New Rochelle (“the District”) has been determined to have engaged in discriminatory conduct towards mobility impaired students. There is already one multi-million dollar lawsuit pending and a second one expected.

Despite entering into agreements with the U.S. Department of Justice (“DOJ”) and U.S. Department of Education Office of Civil Rights (“OCR”), the District continues to engage in discriminatory conduct.

An investigation by Talk of the Sound into ongoing Americans with Disabilities Act (“ADA”) violations by the District has revealed that school officials lied to federal investigators, made at least two material false statements to federal officials regarding repairs at one school and, despite a Consent Decree with the DOJ, have repeatedly rigged fire drills at another school, thereby denying students their civil rights to participate in all school activities and endangering students and staff.

An investigation of the exterior areas of the District’s ten school campuses and buildings show that not a single school is in full compliance with the ADA regarding parking spaces, parking signage, curb cuts and ramps. These ADA violations will be covered in an upcoming series of articles.

The District has refused repeated requests by Talk of the Sound to explain who in the District is responsible for compliance with the ADA, whether that has changed since the federal government has twice successfully brought legal action against the District and what procedures have been changed as a result. This person is typically referred to as the ADA/Section 504 Coordinator for the District.

UPDATE: The District sent an email stating that “The District’s ADA/Section 504 Coordinator is Dr. Diane Massimo.”

In perhaps the most egregious ongoing violation, one wheel-chair bound second-grader at the Henry Barnard Early Childhood Center, assigned to a second floor classroom, has routinely been moved down to a lower floor and placed near a door before the alarm is pulled for mandatory fire drills. The school obtained an evacuation chair for this student over the summer but has failed to use it during fire drills since school began.

Records obtained from the DOJ and OCR show that school officials have made numerous false statements intended to cover up past and current violations.

On February 27, 2013, the District entered into a Resolution Agreement with the OCR signed by Schools Superintendent Richard Organisciak. The Resolution Agreement was the result of a 2012 investigation into a series of reported ADA violations at New Rochelle High School (“NRHS”) made by Richard Feltenstein on behalf of his daughter on April 20, 2012. The OCR upheld a complaint regarding wheel-chair access to the NRHS Planetarium. The District agreed to produce a plan to provide an accessible route to the Planetarium for individuals with mobility impairments by May 31, 2013 and complete those plans by August 31, 2013.

It is another matter entirely that the six-figure contract to make repairs was awarded without putting the job out for bid, a violation of New York State Law. This will be the subject of a future article.

On August 29, 2013, the District notified OCR that the work on the Planetarium was 85% complete. On September 26, 2013 the District notified the OCR the work was 100% complete and that District was in full compliance with ADA requirements. The OCR accepted the District’s word on this without further investigation.

In a letter addressed to Richard Organisciak dated February 24, 2014, the OCR wrote:

The District provided information to OCR in accordance with the monitoring provisions of the agreement. Based on its review of the information the District provided, OCR determined that the District has complied with all requirements of the agreement. Accordingly, OCR has concluded its monitoring of the agreement, and is closing the above-referenced case as of the date of this letter.

An investigation by Talk of the Sound indicates that a key claim by the District to the OCR was false and that the District is still not in compliance with ADA regarding Planetarium access for mobility impaired students.

The District represented to the OCR that the Ramp leading from street level down to the Building Entrance had a slope of less than 5 degree and that because the slope of the ramp is not greater than 5 degrees handrails (to be no more than 36” high) were not required. The District added that, despite this, the District installed guardrails “as an added safety feature”.

NRHSPlanetariumRamp 1337

Measurements taken by Talk of the Sound for an upcoming investigative series, show that the slope of the ramp ranges from 8.3 degrees to 8.9 degrees, roughly 50% steeper than permitted under the ADA.

On July 23, 2014, the DOJ filed a federal lawsuit alleging that the District routinely ignored federal and state laws intended to protect the health and safety of mobility impaired students. The lawsuit was filed after a more than year long investigation by the DOJ after news reports from Talk of the Sound and the Journal News raised questions about a January 31, 2013 fire incident during which Jennifer Feltenstein and Michael Martinez, two wheel-chair enabled students, were not removed from the NRHS along with the rest of the student body as part of a building-wide evacuation.

The DOJ lawsuit asked the courts to direct the District to award compensatory damages and injunctive relief to Jennifer Feltenstein and Michael Martinez to fully compensate them for injuries caused by the School District’s discriminatory conduct and award other additional relief.

Also on July 23, 2014, in a pre-negotiated settlement, the District agreed to accept a Consent Decree for three years. Under the Consent Decree, the District accepted the findings of fact in the DOJ investigation and agreed to meet certain requirements.

On September 16, 2014, Jennifer Feltenstein and Richard Feltenstein, filed a $26 million dollar lawsuit against the District. Another student, Michael Martinez has yet to file a lawsuit but one is expected.

The Feltenstein lawsuit outlines a persistent pattern of violations of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 (“Section 504”) that include the findings of fact in the DOJ Consent Decree and the OCR Resolution Agreement but go beyond them to include years of violations by school officials.

The DOJ investigation raises a number of serious questions about the truthfulness of school officials, in particular, Director of Special Education Yvette Goorevitch.

Despite attempts by then-Board of Education President David Lacher to portray the DOJ findings as a benign form of consulting advice and similar efforts by current Schools Superintendent Dr. Brian Osborne after losing the DOJ lawsuit, the District is now exposed to ten of millions of dollars in legal costs, construction costs and compensatory damages as well as further injunctive relief.

The DOJ findings of fact, which the District accepted in the Consent Decree, make clear that Goorevitch was not truthful in her answers to federal investigators or in her public statements immediately after the fire incident. A number of the other statements by Goorevitch appear to have been intentionally misleading.

For example, Goorevitch claimed that “holding rooms” were “identified and marked in consultation with the Fire Department”, a claim flatly and unequivocally denied to the DOJ by the New Rochelle Fire Department.

In an exclusive interview with Talk of the Sound days after the fire incident, New Rochelle Fire Chief Lou DiMeglio disputed Goorevitch’s claim.

“To my knowledge, there are no holding rooms at the high school marked in consultation with us,” said DiMeglio.

Garavanta Stair Trac CD7

Goorevitch also claimed that evacuation chairs for Jennifer Feltenstein were “not a requirement” but added “we have recently ordered evacuation chairs for the HS and they have been obtained.”

District records show that Goorevitch’s statement that the evacuation chairs were “not a requirement” to be false and her claim to have “recently ordered” the evacuation chairs grossly misleading.

Talk of the Sound has obtained extensive internal District documents under Freedom of Information requests and well-placed sources. These records include email exchanges and Jennifer Feltenstein’s Individualized Education Plan (“IEP”) which make clear that the evacuation chairs were a requirement for Jennifer Feltenstein and that the District agreed to obtain and implement them more than a year before the fire incident. The DOJ found that the District left the evacuation chairs crated, in storage, until days after the fire incident.

The evacuation chairs for Jennifer Feltenstein were discussed at a Program Review meeting at City Hall on January 4, 2012.

Two Evacu-Trac CD7 evacuation chairs and two Storage Cabinets were requisitioned by the District from Garaventa Lift Company on February 28, 2012, according to District financial records.

A subsequent Program Review meeting took place on March 23, 2012.

A Committee on Special Education (“CSE”) meeting was held on May 14, 2012 for a CSE Reevaluation Review, a meeting which typically takes place once every three years, to review the student’s need for special education programs and services and to revise the IEP, as appropriate.

Sharon Mast, Chairperson for the NRHS Committee on Special Education, confirmed via email to other CSE members including administrators, clinical staff and teachers that the evacuation chairs were still not available four months after the District had agreed to order them.

From: Sharon Mast smast@nred.org
To: David Diamond ddiamond@nred.org
Date: 5/14/12 2:28 PM
Subject: J.F. – Reevaluation follow-up issues
CC: acosta1@nred.org, aguiney@nred.org, mmorris@nred.org, lthompson@nred.org, dvetrano@nred.org, gmarzullo@nred.org
_________________________________________________________

We’ve just had Jennifer’s CSE reevaluation review, and there are several issues in need of follow-up, either as a result of this meeting or previous meetings. While some of these issues may require the input of Dr. Weiss-Harrison or Mr. Starvaggi, I thought it best to bring these to your attention first so that you could involve other administrators in the resolution of these issues as appropriate:

1. Evacu-safety chair was discussed with Mrs. Goorevitch at the program review of 1/4/12 at City Hall. This was presumably on order. Has this arrived?…

3. Reevaluation meeting today, 5/14/12: Parents raised issue of Regents exams on 3rd floor, after-school Global and US History prep classes scheduled for 3rd floor, and Jennifer’s scheduled classes on 3rd floor for next year. Until an evacu-safety chair is in place, Jennier does not feel comfortable participating in these classes and activities on the 3rd floor, yet needs access to them. Room assignments need to be made with this in mind…

5. Reevaluation meeting today, 5/14/12: Multiple day administration of Regents exam: parents would appreciate confirmation of scheduling given possible conflict between various exams being administered to Jennifer. Again, need for room allocation on 1st or 2nd floors only was raised…

Please let me know whether you will be communicating directly with the Feltensteins with regard to these matters or whether you would prefer that I case manage on these issues.

Thank you,

Sharon

Despite Goorevitch’s claims to the contrary, the DOJ determined that although the evacuation chairs were ordered a year before the fire and delivered to the District during the previous summer, the evacuation chairs remained unopened in their crates on the day of the fire incident. As they had never been opened, it is axiomatic that no training with the evacuation chairs had occurred.

The numerous false and misleading statements by school officials coupled with the documented failures to adhere to the ADA and Section 504 is highlighted in the $26 million lawsuit that has now been filed by the Feltensteins.

One exchange, from a meeting in the fall of 2011, may figure prominently in the pending litigation.

At the meeting, the Feltensteins pleaded to have their daughter’s classes moved from the third floor to a lower floor.

The DOJ report states that Yvette Goorevitch dismissed those concerns.

“According to Vice Principal Starvaggi, Director of Special Education for the District Yvette Goorevitch stated that moving Jennifer’s classes would be ‘playing into Jennifer’s anxieties.’”

The finding of fact by the DOJ, which the District accepted in the Consent Decree, shows that not only were the concerns of the Feltensteins not a matter of playing into their daughter’s anxieties but rather well-founded in so much as the District has since admitted to never having developed an evacuation plan for Jennifer Feltenstein or for any other mobility-impaired student, all while operating under a protocol in which mobility-impaired students were intentionally not evacuated and that during an actual fire incident she was left behind, on the third floor with no evacuation chair and no trained personnel to assist her.

The IEP for Jennifer Feltenstein, developed by Sharon Mast and dated May 14, 2013, references accommodation for evacuation chairs in the section on “Social Development” along with an observation that “[Jennifer Feltenstein] continues to experience anxiety in certain situations.”

Typically, an accommodation for a piece of equipment like an evacuation chair would be described in the IEP section on “Assistive Technology Devices and/or Services” or the section on “Management Needs”.

The IEP observation reflects the attitude attributed to Goorevitch by Starvaggi — that Jennifer Feltenstein’s concerns with evacuation from the third floor were a form of an anxiety disorder that reflected her inability to adjust to the school environment.

Jennifer Feltenstein’s IEP was finalized on May 14, 2012 and makes repeated reference to the emergency chair as discussed in prior meetings:

Follow-up is needed regarding the emergency chair for evacuation from 3rd floor during emergencies…All scheduled exams need to be on either the 1st or 2nd floor of the NRHS building until appropriate emergency arrangements are in place…Regents review classes after school need to be scheduled for either the 1st or 2nd floor so that Jennifer can attend.

Once an IEP is finalized, the district is required under the federal Individuals with Disabilities Education Act (“IDEA”) to provide the services and accommodations described within the plan.

Therefore, while an evacuation chair is not required, generally speaking, it became required once it was included in Jennifer Feltenstein’s IEP. Further, under Section 504, there is an accessibility issue for Jennifer Feltenstein which would likewise require the District to provide an evacuation chair for her, along with a trained aide. Goorevitch’s statement that an emergency chair was not required is false.

Jennifer Feltenstein’s IEP also states “Jennifer will require an updated safety plan for NRHS.”

Goorevitch, after the fire incident, made another false and misleading statement about Jennifer Feltenstein, when she stated “this student’s access plans have been scrutinized and there were no concerns voiced about her evacuation and safety plan.”

Despite the IEP requirement that the District “update” Jennifer Feltenstein’s safety plan for NRHS, and despite New York State requirements to have a safety and evacuation plan for Jennifer Feltenstein and all other mobility impaired students, the DOJ found that the District never created an evacuation and safety plan plan for Jennifer Feltenstein or any other mobility impaired students. Therefore, Goorevitch’s claim that “student’s access plans have been scrutinized” is false, there were no such plans. It is axiomatic that if no evacuation and safety plan was created no concerns could be “voiced” about the plan.

A year earlier, in August 2013, the DOJ issued the results of its preliminary investigation in which the DOJ noted the following:

At least four students with mobility disabilities under the ADA attended NRHS during school year 2012-2013; we refer to them in this letter as students AB (Jennifer Feltenstein), CD (Michael Martinez) , EF, and GH. Through its investigation, this Office found that NRHS violated the ADA by failing to modify its policies and practices to assist individuals with disabilities. More specifically, this Office has found that NRHS failed to reasonably modify its policies and practices to accommodate student AB’ s requests to attend classes on floors with accessible exits and failed to allow all disabled students equally to participate in emergency drills and the actual evacuation occurring on January 31, 2013.

The DOJ notes that security consultants were hired in 2011-12 to “review and modify NRHS’s existing safety plan for the school” but that the District never discussed a plan for evacuating mobility impaired students and that no plan for mobility impaired students was developed. At the time of the fire incident, there was no written safety plan or evacuation plan for students with mobility impairments and that up until January 31, 2013, it was the policy of New Rochelle High School not to evacuate students with mobility impairments during drills.

The DOJ identified three District employees by name as responsible parties in their investigation, Yvette Goorevitch, Bruce Daniele, Director of Security for the District. and NRHS Vice Principal Joseph Starvaggi who the DOJ says was “responsible for updating, distributing, explaining, and testing its safety plan” and “serves as the ‘point person’ during drills and actual emergencies”.

The job specifications for Special Education Aide in the City School District of New Rochelle, approved by the New Rochelle Board of Education and the New Rochelle Municipal Civil Service, include escorting students with disabilities out of school buildings during fire drills and actual emergencies. Special Education Aides are required to complete 15 hours of pre-service or in-service training in behavior management, school safety and nature and needs of students with disabilities by the completion of the probationary period. The DOJ determined that such training, as it pertains to mobility impaired students, occurred in no more than two cases.

The full DOJ findings of fact report contains numerous other examples of major failures to provide for the safety of wheel-chair enabled students.

School officials told DOJ investigators that the New Rochelle Fire Department was aware the students were in the building and directed that the students be left in the building while all other students were evacuated. The New Rochelle Fire Department told DOJ investigators this statement was false.

School officials told DOJ investigators that prior to the 2013 fire incident two employees had been given training on the use of evacuation chairs during emergencies. The DOJ noted that school officials were unable to name the two employees.

The DOJ found no other training relating to the evacuation of mobility impaired students had been provided to District personnel, including the two security guards assigned to Jennifer Feltenstein (“Skip” Pallocci) and Michael Martinez (Stephen McClain) on the day of the fire incident.

The DOJ concluded that “the District violated Title II of the ADA through its failure to (i) evacuate students AB (Jennifer Feltenstein), CD (Michael Martinez) on January 31, 2013; (ii) establish an evacuation plan prior to January 31, 2013 and (iii) permit students who use wheelchairs for mobility to participate in evacuation drills in an equal way in accordance with the statute.”

Under the Consent Decree, the District is required to establish an Accessibility Plan for Students with Disabilities at NHRS that, among other things, provides for “accommodating requests from students with disabilities to be assigned to classrooms from which there is an accessible means of egress, and ensures that appropriate evacuation procedures are in place for the safety of all students with disabilities” and explicitly does not settle any claims for compensatory damages to each of the students who were not evacuated on January 31, 2013.

In the coming days, Talk of the Sound will publish an investigative report into exterior ADA violations at the 10 New Rochelle public school buildings.

RELATED DOCUMENTS:

U.S. Department of Justice Finds New Rochelle Violated Civil Rights of Wheelchair-Bound Students in NRHS Fire Incident, Recommends Compensatory Damages to Families

New Rochelle Fire Chief Denies Claims by School Officials Following Incident at High School

City School District of New Rochelle Civil Complaint.pdf

City School District of New Rochelle Consent Decree.pdf

2 thoughts on “New Rochelle’s Discrimination Against Mobility Impaired Students Continues, Despite Two Federal Agreements and a $26 Million Lawsuit”

  1. So I think you mean degrees not percent
    ADA Standards Require a 1:12 slope ratio which equals 4.8 degrees or one foot of wheelchair ramp for each inch of rise.

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