The State Education Department
State Review Officer

No. 96-28

 

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Great Neck Union Free School District

Appearances:
Elaine Miller, Esq., attorney for petitioner

Ehrlich, Frazer and Feldman, Esqs., attorneys for respondent, Jacob S. Feldman, Esq., and Laura A. Mongelli, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's Committee on Special Education (CSE) that petitioner's son remain classified as emotionally disturbed, and that the boy be educated in a private residential school. While agreeing with the CSE's recommendation, the hearing officer nevertheless directed that the CSE review its recommendation, after the child had attended the residential school for a four month period, to determine whether the child could function in a less restrictive environment. The appeal must be dismissed.

        Petitioner's son is seventeen years old, but he had not achieved any high school credits as of the time of the hearing in this proceeding. The child has reportedly been counseled by a social worker, since he was in the second grade, because of difficulties with his peers, who reportedly teased him about his obesity. The child and his family have also been involved in family counseling to resolve disagreements within the family. However, there is no evidence in the record of the child's educational performance while in elementary and middle school.

        Petitioner's son reportedly had difficulty maintaining his attention and completing his schoolwork, while in the eighth grade during the 1992-93 school year. In December, 1992, a physician evaluated the child for a suspected attention deficit disorder (ADD). Five of the boy's teachers completed the Teachers' Connor Rating Scales about the boy's performance and behavior in the school. The physician who evaluated the child reported that the information provided by his teachers was consistent with a diagnosis of ADD. The physician also indicated that the child evidenced symptoms of an attention deficit hyperactivity disorder (ADHD). He reportedly recommended that the child receive stimulant medication, but the child's parents did not accept the physician's recommendation.

        While in the eighth grade, the child was referred to respondent's CSE because his performance in school was reportedly erratic and his behavior was oppositional. He was evaluated by a school psychologist in January, 1993. The school psychologist reported that the child had achieved a verbal IQ score of 137, a performance IQ score of 135, and a full scale IQ score of 139. The school psychologist reported that the child appeared to be quite motivated during the evaluation, and was able to remain focused. On academic achievement tests, the boy achieved grade equivalent scores of 10.7 in letter-word identification, 10.0 in passage comprehension, 8.9 in mathematical calculation, 15.3 in applied mathematical problems, and 11.7 in writing. Although the child's scores were at or above his expected grade level, the psychologist noted that the scores were somewhat below that which would be expected for a child with his cognitive skills. The boy's visual motor perceptual and visual memory skills were reported to be adequate. The school psychologist described the child as very motivated to do well, and anxious when he perceived that he was not being as successful as he wished. He further indicated that projective testing revealed that the child was sensitive, and very aware and reactive to events and interactions within his family. The school psychologist hypothesized that the child was involved in a conflict of loyalty between his parents, which resulted in the child's emotional immobility. He indicated that the emotional conflicts caused the child tremendous turmoil which appeared to be the source of the child's school problems.

        Although the record reveals little information about the action taken by the CSE in the 1992-93 school year, a school social worker testified that the child received resource room services during that year. She further testified that the child was apparently declassified because petitioner would not agree to his placement in special education classes for ninth grade, during the 1993-94 school year. However, the child reportedly became anxious about his performance in school, and stopped attending school. The child's behavior at home reportedly deteriorated, despite the private psychological and psychiatric treatment which he was receiving. He was reportedly taking one or more medications to control his behavior.

        In February, 1994, the child was hospitalized in the Holliswood Hospital, for approximately two weeks. A patient history which was completed at the time of his hospitalization indicated that the child reported that his parents had been verbally abusive to him. The child had reportedly threatened and/or physically attacked his mother on more than one occasion, and had knocked a door down at home. Upon admission to the hospital, the boy was diagnosed as having an impulse control disorder, a bipolar disorder, and an intermittent explosive disorder. On March 4, 1994, a psycho-educational evaluation of the child was performed at the Holliswood Hospital. He achieved a verbal IQ score of 131, a performance IQ score of 115, and a full scale IQ score of 126. His lowest subtest scores were obtained when he was required to perceive and recreate forms, or assemble familiar objects. He also achieved standard scores of 121 in reading and 120 in mathematics. The evaluator recommended that the child be placed in a challenging, but highly structured, environment at school, and that he receive counseling. When discharged from the hospital on March 11, 1994, the child was diagnosed as having a bipolar disorder, and a personality disorder with narcissistic and borderline features. His treating physician indicated that the child's insight and judgement were limited, and opined that the child could not function in a regular classroom setting. He recommended a day hospital educational placement for the child.

        After the child's discharge from the hospital, respondent arranged to have him individually tutored. In May, 1994, the child was evaluated by a psychologist of the Board of Cooperative Services of Nassau County (BOCES) for possible admission to the BOCES Alternative Learning Program (ALP). The BOCES psychologist reported that the child could be instructed at the tenth grade level in reading, and the eleventh grade in mathematics. She reported that the child appears to have the potential to complete an academic high school program, but noted that the child's feelings of insecurity and vulnerability led to social isolation from peers and anger and mistrust of others. She recommended that the BOCES admit the child to its ALP, in September, 1994 for the tenth grade. She also recommended that counseling be provided to the child.

        Petitioner's son was enrolled in the ALP, for the 1994-95 school year, apparently pursuant to an individualized education program (IEP), which is not part of the record before me. At the hearing in this proceeding, respondent's Director of Pupil Personnel Services described the ALP as a program for bright, college-bound students who are unable to function in a mainstream environment. Petitioner's son reportedly attended the ALP for only a few days. On October 3, 1994, he was admitted to the Hillside Hospital because he reportedly expressed ideas of suicide, and was overly aggressive. The admitting physician noted that the child had tried various medications to control his behavior, but was no longer taking any medication. The physician diagnosed the child as having a major depressive versus bipolar disorder, as well as an oppositional defiant disorder. When discharged from the Hillside Hospital on October 24, 1994, the child was diagnosed as having a major depression "recurrent", an anxiety disorder, and an oppositional defiant disorder. His mood was described as having improved, but his prognosis was described as poor.

        On November 21, 1994, respondent's school social worker, who was the child's case manager, met with the ALP staff to discuss the child's performance in the ALP. The school social worker testified at the hearing that the ALP psychologist and the child had agreed that the child would come to the ALP at least three of every five school days, as a way of helping the child make the transition from the hospital back to the ALP. However, the child reportedly did not comply with the agreement. ALP staff advised the school social worker that the child was not working in their program, when he attended. In an academic deficiency report which was sent to petitioner and respondent on December 15, 1994, the child's ALP teachers indicated that the child was failing each of his academic subjects, and that he was rarely in their classes. The school social worker advised the ALP staff that the CSE would meet to review the child's placement.

        Respondent's school social worker spoke to the child's psychiatrist about the advisability of placing the child in a residential school. In a letter dated December 13, 1994, the psychiatrist indicated to the school social worker that the child continued to suffer from significant anxiety and dysphoria, and had been resistant to any therapeutic intervention and attending school. He also indicated that "Although [the child] would most likely function well in a structured setting, such as his current day program, the inability to get him to attend speaks towards a possible need for a residential placement in order to physically get him into an academic setting." (Exhibit 4).

        On December 14, 1994, petitioner and her son met with the CSE, which decided to explore the possibility of placing the child in a residential school. However, the minutes of the CSE meeting indicate that the CSE informed petitioner and the child that the residential placement process would take some weeks to complete, and that in the interim the child should return to the ALP to show that he could function in a day program. At the hearing, the CSE chairperson and the school social worker testified that they had indicated to the child that if he could demonstrate that he could function in the ALP, the CSE would abandon its decision to place the child in a residential school. The IEP which was prepared at that meeting indicated that the child had been classified as emotionally disturbed. The school social worker testified that to her knowledge, the child did not return to the ALP. The record reveals that the child was absent from the ALP, when the Regents Competency Tests in science and mathematics were given on January 25 and 26, 1995.

        On February 9, 1995, the child was accepted for admission to the Summit School and Children's Residence, which is located in Upper Nyack, New York. The State Education Department had previously approved respondent's application for State and for residential placement (See 8 NYCRR 200.6 [i]). Petitioner and her son went to the Summit School on March 1, 1995. However, the child did not wish to stay there, and petitioner acceded to his request to be taken home that day.

        On or about March 2, 1995, respondent initiated a Persons in Need of Supervision (PINS) proceeding in Nassau County Family Court, because the child, who was then 16 years old, was not attending school as required by the compulsory attendance law (Section 3205 of the Education Law). The Family Court reportedly urged petitioner to encourage her son to attend the Summit School, but petitioner asked that the child be given a chance to attend respondent's high school. The Family Court deferred to the CSE on petitioner's request.

        The CSE met on April 12, 1995, at which time it agreed to have the child attend respondent's high school for a program devised by one of respondent's school psychologists. The child was to attend classes for certain subjects, and would receive individual instruction in other subjects. The school social worker testified that the child was also to receive individual assistance to support the entire educational program. In view of the lateness of his entry into the courses, the child was not expected to earn high school credit, but was expected to attend school regularly. The CSE meeting minutes indicated that respondent would contact the Family Court, if the child failed to attend school.

        At the hearing, the child acknowledged that he did not attend the first period social studies class to which he was assigned in April, 1995, but asserted that the medication he was taking prevented him from getting up in time to attend that class. On May 25, 1995, the two teachers who were supposed to provide individual instruction to the child reported that the child frequently failed to appear for instruction. Both teachers had been assigned to work with the child during the morning hours. The child reportedly received a three-day suspension from school for his involvement in an altercation with another student, and an incident in which he allegedly pounded on a school door. In a letter to the child's parents, the high school principal reported that the child had been abusive, oppositional, and insubordinate. The child ceased to attend school.

        On or about June 19, 1995, petitioner and the school social worker appeared before a judge of the Nassau County Family Court, who reportedly granted respondent's PINS petition, and directed the child to enroll in the Summit School. The child entered the Summit School shortly after the judge granted the PINS petition. At petitioner's request, the CSE reconvened on August 30, 1995, to review the child's program and placement. Petitioner's son reportedly advised the CSE that he had not participated in any education programs in the Summit School, except for an independent study mathematics course. The Summit School's Director of Admissions testified at the hearing in this proceeding that the child failed to complete the assignments which had been given to him in the independent study mathematics course which he had requested. In a progress report dated August 29, 1995, the Director of Admissions indicated that the child's participation in the Summit School's program was compromised by his failure to promptly return to the school after weekends. Nevertheless, the Director of Admissions indicated that the child was making a reasonable adjustment to the school's program. At the hearing, he testified that the child was getting up in the morning, and attending school, which was a significant change in his behavior. The CSE considered the request of petitioner and her son that the CSE recommend a day placement for the child. However, it recommended that he remain in the Summit School for the 1995-96 school year.

        In October, 1995, the child's social worker in the Summit School prepared a report, in which she indicated that the child frequently absented himself from classes because of alleged physical ailments, although the nursing staff reported that there was nothing wrong with the child. She described petitioner as "feeding into the child's symptoms." The social worker also reported that the child's family allowed the child to come home every weekend, rather than every other weekend as prescribed by the school. She opined that the child would make social, academic, and emotional progress, only when his family became convinced that the Summit School was an appropriate placement for him. On October 24, 1995, respondent's school social worker visited the Summit School for a conference with the staff of the school. She reported that although the child attended classes, he did little work in his classes. He was also described as virtually friendless, after having reportedly alienated the other students.

        On January 17, 1996, the CSE met with petitioner and her son to review the child's placement. The Summit School's Director of Admissions reportedly participated in the meeting by telephone. The Director of Admissions indicated that the child had successfully avoided becoming involved in the school's program, and that his attendance and academic productivity had been problematic. However, the child was not disruptive in class. Petitioner asked that her son be given the opportunity to return to respondent's high school. The CSE deferred making a new recommendation until the child could be seen by a psychiatrist, and until the CSE chairperson could confer with the psychiatrist. On January 19, 1996, the CSE chairperson spoke to the psychiatrist who reportedly indicated that although there had been some improvement in the child's depression, he continued to have severe personality and oppositional "issues" which would preclude him from functioning in a mainstream, i.e., regular education environment. In a subsequent conversation with the CSE chairperson on January 30, 1996, the psychiatrist reportedly indicated that based upon the child's inability to show-up for an appointment with him and his performance at the Summit School, the psychiatrist could not recommend that the child be placed in a mainstream setting.

        The CSE reconvened on January 31, 1996. Petitioner's son informed the CSE that the only placement he would consider was a placement in the respondent's high school. However, the CSE recommended that the child remain in the Summit School, because it believed that he required a highly structured therapeutic environment to address his needs. At the conclusion of the CSE meeting, petitioner submitted a written request for an impartial hearing to review the CSE's recommendation.

        The hearing in this proceeding began on March 1, 1996, and concluded on March 19, 1996. At the hearing, petitioner challenged the validity of her son's classification as emotionally disturbed, and asserted that he required a new evaluation. She asked the hearing officer to order respondent to allow the child to be enrolled in the regular education program of respondent's high school, and suggested that respondent could award high school credits to the child, based upon an assessment of what he knew. Respondent opposed petitioner's requests.

        In his decision which was rendered on March 26, 1996, the hearing officer identified the issues to be determined as whether the child was appropriately classified as emotionally disturbed, whether the child's IEP was inadequate because it did not include a transition plan, and whether the recommended placement in the Summit School was appropriate for the child. The hearing officer found that the child was appropriately classified as emotionally disturbed. He noted that a private psychologist who began to evaluate the child in February 9, 1996, which was approximately one week after the CSE had made the recommendation which the hearing officer was reviewing, had opined at the hearing that the child should not be classified as emotionally disturbed, but should be classified as other health impaired. However, the hearing officer believed that he was precluded from considering evidence which had not been presented to the CSE either before or at the time when it made its recommendation. He also questioned the basis for the psychologist's opinion that the child's sole disability for educational purposes was an ADHD. With regard to the issue of a statement of needed transition services in the child's IEP (see 34 CFR 300.346 [b]; 8 NYCRR 200.4[c][2][v]), the hearing officer noted that transition planning had reportedly been discussed with petitioner at the CSE meeting on December 14, 1994, but the hearing officer did not otherwise address the issue. The hearing officer noted that the private psychologist's testimony raised a question about the child's ability to benefit from instruction in a less restrictive environment than the Summit School. However, he found that in view of the child's repeated failure to function successfully in less restrictive settings, such as the ALP and respondent's high school, the child should first demonstrate his ability to attend the Summit School and actively participate in its educational and therapeutic program for a period of four months. The hearing officer directed the CSE to review the child's program and placement, as well as his classification, after the child had attended the Summit School for four months. He indicated that he would retain jurisdiction over the matter, unless either party objected (see Application for a Child with a Disability, Appeal No. 96-45.)

        Petitioner challenges the hearing officer's determination which supported the CSE's recommendation that her child should return to the Summit School. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        Before I address the contents of the child's IEP, I note that petitioner asserts that the CSE which prepared the child's IEP on January 31, 1996, was not properly constituted because it did not include the child's "teacher," as that term is defined in the Federal and State law. Federal regulation (34 CFR 300.344 [a][2]) and the New York State Education Law Section 4402 (1)(b)(1) require that a child's teacher be a member of the CSE which conducts a review, or makes a recommendation for services to be provided to the child. In the minutes of the CSE meeting which was held on January 31, 1996, there is a blank space next to the title "Student's Teacher." The minutes indicate that the CSE consisted of the chairperson, two psychologists, the parent member, and P. Harrison, who is identified as a special education teacher. In its answer, respondent asserts that Ms. Harrison was one of its special education teachers, and that she was designated to serve as the child's teacher member of the CSE, in accordance with the provisions of 34 CFR 300.344. Respondent relies upon an explanatory note for that regulation, which indicates that:

"If the child is not in school or has more than one teacher, the agency [school district] may designate which teacher will participate in the meeting. Either the teacher or the agency representative should be qualified in the area of the child's suspected disability."

        Respondent contends that the child stopped attending the Summit School, at the beginning of the Christmas vacation in December, 1995, and that it was therefore authorized to designate Ms. Harrison to serve as the child's teacher at the CSE meeting because the child was not in school. Although the Summit School remained as the last mutually agreed upon placement for pendency purposes, there does not appear to be any question about whether the child was attending that facility, or any other school, when the CSE met. Upon the facts presented to me, I find that there is no merit to petitioner's contention that the CSE was invalidly composed.

        Petitioner also contends that the child's IEP was invalid because it did not include a statement of needed transition services, as required by 34 CFR 300.346 (b); 8 NYCRR 200.4 (c)(2)(v). Transition services are defined by Federal regulation as:

"(a) ... a coordinated set of activities for a student, designed with an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.

(b) The coordinated set of activities described in paragraph (a) of this section must ...

(1) Be based on the individual student's needs, taking into account the student's preferences and interests; and,

(2) Include needed activities in the areas of:

(i) Instruction;

(ii) Community experience;

(iii) The development of employment and other post-school adult living objectives; and

(iv) If appropriate, acquisition of daily living skills and functional vocational evaluation." (34 CFR 300.18 [a]+[b])

        I have reviewed the child's IEP, which indicated under a "Transition Plan" heading that the child should participate in a coordinated set of activities to develop plans for addressing post-secondary education and vocational needs. It also indicated that transitional planning activities were not needed to address career exploration, employment, residential options, community experiences and daily living skills (See 34 CFR 300.346 [b][2]). The child's IEP also included two annual goals which were designed to assist the child in identifying post-secondary school options and various career choices. I find that petitioner's contention is without merit.

        The central dispute between the parties is whether the child's IEP of January 31, 1996 accurately reflected his then current special education needs and provided for the appropriate services to address those needs. Petitioner asserts that there have been significant changes in the child's mental status and educational needs, since the CSE's initial recommendation on December 14, 1994 for a residential placement. She asserts that the IEP reflected the results of the evaluations which were performed in March and May, 1994, and insists that the CSE should have retested the child to ascertain his present educational levels. Petitioner also asserts that the child was taking various psychotropic medications during the period from his initial hospitalization in March, 1994 until December, 1995, but that he was no longer taking those medications when the CSE made its recommendation on January 31, 1996. The child, who had not previously taken medication for his ADHD, reportedly began taking Ritalin to address his ADHD some time in February, 1996.

        Petitioner has annexed to her petition a copy of an undated assessment of the child by the private psychologist who began his assessment shortly after the CSE made its recommendation. Petitioner asserts that the psychologist completed his assessment on May 1, 1995, and she argues that it should be given great weight as " ... the only current evidence of [the child's] current academic and emotional status." Although the assessment was not part of the record which was before the hearing officer, I will consider it because it was not available at the time of the hearing (Application of a Child with a Disability, Appeal No. 95-80). Nevertheless, I find that the assessment does not establish that the CSE based its recommendation upon inadequate or out-of-date information.

        For a description of the child's levels of educational performance in the IEP, the CSE relied upon the results of standardized testing performed in March and May, 1994. By all accounts, the child has not actively participated in any educational program since then, in the sense of regularly attending school and completing school assignments. Having compared results of the early testing of the child with those which the private psychologist obtained in 1996, I find that the child's IEP accurately described the child's cognitive abilities and his academic skills. The private psychologist found that the child, who obtained a grade equivalent score of 10.5 in basic reading, evidenced a need for remediation of his phonological decoding skills, and for remediation of his written expression skills. While the CSE must of course consider the psychologist's report when it next revises the child's IEP, I am not persuaded that his report addresses the central issue of this proceeding, which is whether the child should continue to be placed in a residential school.

        At the hearing, the private psychologist testified that he was in the process of evaluating the child, but had not completed his evaluation. He indicated that he had administered and scored an IQ test, and the Minnesota Multiphasic Personality Inventory (MMPI). Upon the basis of the child's performance on the MMPI, as well as his interview of the child and his mother, the psychologist opined that the child did not evidence the symptoms of a severe personality or oppositional defiant disorder. The psychologist acknowledged that he had not formally tested the child for the existence of ADHD, but nevertheless opined that the child had an ADHD, and that he would be more appropriately classified as other health impaired than emotionally disturbed. The psychologist testified that people with ADHD may also be oppositional, but that it was a comorbid condition, i.e., was not caused by, but coincided with, the ADHD. He acknowledged that the description of the child in the reports about the child's two hospitalizations in 1994 was consistent with the diagnosis of a major depression, but he asserted that the MMPI test results and his clinical interview of the child and petitioner established that the child no longer had a major depression.

        The psychologist was also asked to address the fact that the child's psychiatrist had reportedly opined in January, 1996 (See Exhibit 18) that the child continued to have severe personality and oppositional issues which would preclude him from functioning in the mainstream. The psychologist testified that regardless of what the psychiatrist had opined in January, 1996, he found that as of March 19, 1996, there was no basis to believe that the child could not function in a mainstream regular education environment. When asked why he believed that the child could benefit from instruction in a mainstream setting, despite his inability to do so in the more restrictive settings of the ALP and the Summit School, or when he was in respondent's high school in the Spring of 1995, the psychologist testified that he based his opinion on the results of his clinical interview which suggested that the child had no severe pathology which would interfere with his ability to handle a regular education setting. The psychologist also explained that he believed that the child was motivated to handle that type of setting, because of what the child had told him.

        Petitioner has not expressly requested that the hearing officer's decision with respect to the child's classification as emotionally disturbed be annulled. However, for the purpose of this decision, I find that the CSE reasonably relied upon the information which it had received from the child's psychiatrist and from the staff of the Summit School, in reaching its conclusion that the child had significant emotional problems which interfered with his ability to benefit from instruction. In any event, the hearing officer clearly contemplated that the child's classification would be reviewed when the CSE reconvened pursuant to his decision. Although I do not agree with the hearing officer's position that he was precluded from considering evidence about the child's disability which had not previously been presented to the CSE, I find that the evidence adduced at the hearing does not clearly establish that a classification of emotionally disturbed for educational purposes is no longer appropriate. However, respondent's CSE would be well advised to obtain either an updated report from the child's psychiatrist, or a psychiatric evaluation of the child.

        Respondent's CSE was required to recommend an educational placement for the child which was to the least restrictive environment for him. It must ensure that a continuum of alternative placements is available to meet the needs of its children with disabilities (34 CFR 300.551). A board of education may provide a residential placement to a child with a disability, if the placement is necessary to provide special education and related services to the child (34 CFR 300.302). In essence, a residential placement is appropriate under Federal and State law only if it is required for the child to benefit from his or her educational program (Abrahamson v. Hershman, 701 F. 2d 223 [1st Cir., 1980]; Burke County Bd. of Ed. v. Denton, 895 F. 2d 973 [4th Cir., 1990]; Kerkam v. Superintendent D.C. Public Schools, 931 F. 2d 84 [D.C. Cir., 1991]; Applications of Bd. of Ed. Hoosic Valley CSD and a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129; Application of a Child with a Disability, Appeal No. 95-33).

        The record reveals that this child has been unable to benefit from his educational program in less restrictive environments than a residential school. Indeed, he did not attend classes on a regular basis in either respondent's high school, or in the BOCES ALP. As petitioner conceded at the hearing, the child had at least attended classes on a more regular basis when he was enrolled in the Summit School in a residential placement. Although his actual participation in the Summit School's program was minimal because he and his family did not "buy into" the school's program, it does not follow that the child's placement in the Summit School was inappropriate. I am aware of petitioner's assertion that circumstances have changed as a result of the child's treatment for ADHD, and that his psychologist believed that the child could function in a regular education environment. To the extent that the psychologist relied upon the child's stated interest in being returned to the regular education setting as evidence of his ability to be able to function in that environment, I must note that the child expressed a similar interest to the CSE on two prior occasions, with regard to his return to the ALP after the December 14, 1994 CSE meeting, and to respondent's high school after the April 12, 1995 CSE meeting. Notwithstanding his strong interest in being in those less restrictive environments, the child was in fact unable to maintain himself in either program. Although the psychologist testified that the child demonstrated good insight in his conversations with the psychologist, I find that the child's testimony at the hearing about his lack of success in the ALP, respondent's high school, and the Summit School demonstrated little insight.

        Even if there has been some change in the child's ability to function in an educational environment, I find that it would be far more prudent for him to demonstrate that change by fully participating in the program of the Summit School for a trial period, as the hearing officer ordered, rather than to run the risk of another period of wholly unproductive achievement by placing him in a less restrictive environment.

        I have considered petitioner's other contentions, and find them to be without merit.

 

        THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
August 19, 1996 FRANK MUŅOZ