The State Education Department
State Review Officer

No. 96-71

 

 

 

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 City School District of the City of Mt. Vernon

Appearances:
Skyer and Most, Esqs., attorneys for petitioner, Carol W. Most, Esq., of counsel

D'Andrea and Goldstein, Esqs., attorneys for respondent, Vincent P. D'Andrea, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer which found that petitioner had been afforded an opportunity to participate in the development of her son's individualized education program (IEP) for the 1996-97 school year, and that the educational program which respondent's committee on special education (CSE) had recommended for the child was appropriate to meet his special education needs. The CSE recommended that the child be enrolled in a regular education third grade class with resource room services, while petitioner sought to have the child placed in a self-contained class for gifted children with learning disabilities in the local BOCES. The appeal must be dismissed.

        Petitioner's son is eight years old. At the hearing in this proceeding, petitioner testified that her son had been very temperamental and stubborn as an infant and a toddler. The child attended a nursery school in New Jersey. He entered kindergarten in respondent's school district during the 1993-94 school year. Petitioner testified that the child's kindergarten teacher had reported to her that the boy was very bright, but very active and inattentive. He also reportedly had difficulty socializing with other children in kindergarten. In May, 1994, the child was referred to respondent's building-level child study team because he was reportedly unable to complete tasks independently. In June, 1994, the child's kindergarten teacher noted on his report card that the boy was a bright, competent learner, but that he did not work well independently, and appeared to be unmotivated to finish written tasks.

        During the 1994-95 school year, the child was enrolled in the first grade of respondent's Pennington-Grimes Elementary School. His teacher noted that the boy had difficulty focusing, and organizing himself. At the hearing in this proceeding, she testified that the child screamed, rather than talked, in dealing with her and the other children at the beginning of the school year. The child's parents met with the child-study team, which recommended that the boy be medically evaluated.

        On October 15, 1994, petitioner's son was evaluated by a psychiatrist, who diagnosed the child as having an attention deficit hyperactivity disorder (ADHD). The psychiatrist prescribed the medication Ritalin for the child to control the effects of the boy's ADHD. The child's first grade teacher testified at the hearing that the boy's behavior and performance in the classroom improved after he began to receive Ritalin. She further testified that petitioner's son functioned appropriately in small groups, and was able to answer questions and respond appropriately in large groups under direct teacher instruction. She also testified that the child continued to have trouble working independently because of problems focusing and organizing himself. Although the child reportedly began first grade as a non-reader, his teacher testified that the boy had good, but still below grade level, reading skills at the end of the first grade. On the boy's report card, the first grade teacher reported that the child had made good progress in developing his reading, mathematics, spelling, science, and social studies skills. However, the boy's skill at expressing himself in writing, and his handwriting were reported to need improvement throughout the 1994-95 school year. The teacher also indicated that the boy's behavior and social skills were good.

        In the spring of 1995, the child was evaluated, at his parents' expense, by Dr. Eileen Chieco, who is a psychologist. Dr. Chieco noted that the boy's parents reported that the child continued to exhibit tantrum-like behavior every four or five days, although his behavior had generally improved since he began taking Ritalin. At the hearing, petitioner testified that the child's medication was subsequently changed to Inderal and Tofranil, because the boy was having tantrums in the evening while taking Ritalin. Dr. Chieco reported that the child had achieved a verbal IQ score of 128, a performance IQ score of 93, and a full scale IQ score of 112. Although his verbal IQ score was within the superior range, the child evidenced relative weakness performing tasks which required him to use auditory memory, sequencing, and concentration. Dr. Chieco ascribed the child's substantially lower score for performance IQ to deficits in his ability to visualize and to sequence items, as well as his impulsivity. She reported that the child had great difficulty performing rote tasks. Dr. Chieco also reported that the boy had difficulty performing tasks which required hand coordination, and that his graphomotor (handwriting) skills were immature. She indicated that the child's visual perception was intact, and that he generally performed auditory discrimination tasks well. Dr. Chieco opined that the child's poor performance on a sound-symbol test could be indicative of an association disorder, but that in any event the boy's weak visual memory skills would affect his ability to read, spell, and do mathematics.

        On the Wide Range Achievement Test-3, the child attained scores which were in the average range for reading and mathematics, while his spelling skills were found to be in the high average range. Dr. Chieco also administered the Gray Oral Reading Test-3 to the boy, whose standard score of 94 was in the 34th percentile. Although the boy evidenced average reading skills, Dr. Chieco noted that the boy's skills were not consistent with his superior verbal ability. She predicted that petitioner's son would find it increasingly difficult to keep up academically, as he would be forced to compensate even more for the deficits in his visual-motor integration and visual memory skills. She opined that the boy's inability to meet academic expectations at school, and behavioral expectations at home had made the child feel frustrated and powerless, and had lowered his self-esteem. Dr. Chieco recommended that the child receive a thorough neurological evaluation. However, the psychiatrist who had evaluated the child was also a neurologist. Dr. Chieco opined that he would benefit from as much structure as possible, as well as academic support. She indicated that a self-contained class for children who are gifted and "neuropsychologically vulnerable" might enable him to appreciate his superior verbal abilities, and provide him with needed structure and support. She also suggested that the child be allowed to take tests in a separate room in school, because of his distractibility.

        By letter dated August 2, 1995, petitioner sent a copy of Dr. Chieco's evaluation report to respondent's CSE. In lieu of forming its own psychological evaluation, the CSE relied upon Dr. Chieco's report, as it was authorized to do (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-12). The child's second grade teacher reported to the CSE that the child was quiet and well behaved in class, but he was distracted, and did not focus upon the tasks at hand in class. She noted that the boy's handwriting was immature, and that he had poor motor coordination. The child's sentence structure, grammar, punctuation, and spelling were reported to be very poor. However, his oral comprehension and expression were described by the teacher as being good. She reported that the child participated well in the classroom discussion about social studies and science, but that he was fidgety, and needed constant refocusing. Although the child accurately completed his mathematics homework, his teacher said that he had difficulty completing math work in class.

        The child's academic skills were formally evaluated on October 16, 1995. Respondent's educational evaluator reported that the child's oral reading skills were at the lower, i.e., beginning, third grade level, while his silent reading comprehension skills were at the upper first grade level. The child's spelling skills were reported to be at the second grade level. Although the child achieved a grade equivalent score of 3.4 for mathematics, the evaluator noted that the boy's skills ranged from upper second grade for addition and subtraction to upper fifth grade for applications of measurement and money. With regard to the boy's handwriting, the evaluator noted that the child's relative letter sizes were inconsistent, and the spacing between letters was irregular. The child also reversed letters and numbers. The child's speech/language skills were also evaluated. His receptive and expressive language skills were found to be well above his age expectancy. The boy exhibited some deficits in his speech articulation, but respondent's speech/language therapist indicated that those deficits were not sufficient enough to warrant the provision of speech/language therapy to the child.

        In a letter dated October 16, 1995, the psychiatrist who had evaluated the boy in October, 1994 recommended that the child's ADHD be addressed by a combination of medication with emotional and academic support. He opined that the child's intellectual potential could be maximized, if he were placed in an educational program for children who were intellectually gifted and learning disabled.

        On October 19, 1995, respondent's CSE recommended that petitioner's son be classified as learning disabled, and that he receive resource room services five times per week. The boy's IEP indicated that he had severe problems relating appropriately to adults and peers. It included annual goals for reading, written expression, handwriting, science, and mathematics, as well as goals relating to his social/emotional growth, and his management in the classroom. Petitioner now alleges that the CSE's recommendation for the 1995-96 school year was untimely, and was fatally flawed because the CSE lacked the requisite parent member (cf. Section 4402 [1][b][1] of the Education Law). She also alleges that the CSE failed to observe the child in his classroom before it made its recommendation (cf. 8 NYCRR 200.4 [b][3][viii]). However, petitioner accepted the CSE's recommendation, and she does not dispute the boy's classification in this proceeding. Although her written hearing request is not part of the record which is before me, I note that the opening statements by both parties indicated that the issue to be determined was the appropriateness of the boy's proposed IEP for the 1996-97 school year. Under the circumstances presented, I will not review the child's IEP for the 1995-96 school year.

        At the hearing in this proceeding, the child's second grade teacher described petitioner's son as a very bright and verbal youngster who had trouble working independently. She testified that the boy's chief deficit was his inability to attend to his class work. The second grade teacher also testified that the child occasionally made inappropriate remarks in class, but that he was not a discipline problem in school. The child reportedly worked better in small groups than in a large group. He had generally positive relationships with his peers, but his teacher testified that he appeared to have a close relationship with only one other child in her class. His teacher also testified that the child's assignments had been modified to eliminate those which were too easy for him, as well as those which were difficult for him. On the boy's report card, his second grade teacher indicated that the child appeared to be unmotivated to do second grade work, but that he worked with great concentration for long periods of time, when he was directed and stimulated. The boy received satisfactory grades in all academic subjects, except handwriting. It should be noted that the boy was tutored twice per week after school during the 1995-96 school year by his former first grade teacher.

        The child's resource room teacher testified that the child was lacking in self-confidence, frustrated, and angry, as she began to work with him in October, 1995. She attempted to work with him in his second grade classroom, but the boy was reportedly too distracted in that setting. The resource room teacher began to work with him individually in the resource room for three days per week, and in groups of four to five children on the other two days of the week. At the hearing, the resource room teacher testified that on the three days when she worked individually with the boy, he also attended her resource room for two additional periods. That additional assistance was allegedly provided with petitioner's concurrence, but the CSE did not revise the boy's IEP. Using various teaching strategies, which she shared with the child's second grade teacher, the resource room teacher observed that the child became happier, and began to work for her. She testified that the child enjoyed the challenge of working at tasks which were above his grade level, and that by April, 1996, he was using a fourth grade reading workbook, a third grade phonics book, and third and fourth grade mathematics books in his work for her. Resource room teacher also testified that the boy's attention to tasks improved dramatically.

        When group tested on the Stanford Achievement Test in April, 1996, petitioner's son achieved grade equivalent scores of 5.9 in reading vocabulary, 6.6 in reading comprehension, 3.6 in spelling, 3.8 in mathematical computation, and 4.4 in mathematical application. It should be noted that when Dr. Chieco individually tested the boy on the Wide Range Achievement Test-3 in late June, 1996, the boy's reading and spelling skills were found to be in the average range for third grade, while his mathematics skills were in the high average range for that grade. When those scores are compared to the scores which the child achieved when he was tested by Dr. Chieco in the spring of 1995 using the same test instrument, it is apparent that the boy's reading and spelling skills improved by one grade level, and his mathematics skills improved by two grade levels.

        In early April, 1996, the child was observed in his classroom by respondent's Assistant Director of Special Education, who testified at the hearing that the boy participated in class during a mathematics lesson, but that he had become distracted while attempting to work independently on a written mathematics problem. Although he failed to write his answer to the problem, the boy was nevertheless able to orally describe how to solve the problem. On April 26, 1996, the CSE reviewed the child's program for the 1995-96 school year, but it did not decide upon his program for the next school year. On May 6, 1996, the child's parents met with respondent's Superintendent of Schools and other staff members to discuss the child's placement.

        At the direction of the Assistant Director of Special Education, the school psychologist member of the CSE observed the child in his second grade class, and in the resource room. The school psychologist reported that the child independently read from a workbook and circled answers on a worksheet for approximately ten minutes in the second grade classroom. Thereafter, he unsuccessfully attempted to complete a mathematics worksheet, and had to be continually refocused by his teacher and other students. The school psychologist reported that the boy positively interacted with his peers. In the resource room, the child was observed working individually with his teacher, who also had to repeatedly refocus him as he wandered from the topic of discussion with her.

        On May 17, 1996, the CSE discussed a proposal to departmentalize and accelerate the boy's instruction, but it again did not arrive at a consensus about the child's educational program for the 1996-97 school year. The proposal was further discussed at a meeting of the boy's parents and respondent's staff on May 31, 1996. On or about June 14, 1996, a written plan to modify the boy's curriculum in the third grade, with the assistance of the child's resource room teacher and a teacher of the gifted was prepared by those teachers and their supervisors.

        The plan was presented to, and adopted by, the CSE at a meeting which was held on June 17, 1996. On that date, the CSE recommended that the child be enrolled in a regular education third grade class, with supplementary resource room services, enrichment by a teacher of the gifted, and counseling by a school psychologist. Pursuant to the plan which the CSE approved, the resource room teacher would work with the boy in the resource room for five periods per week, and she would provide an additional two periods per week of instruction in a small group in his third grade classroom (hereinafter referred to as push-in services). Respondent's teacher of the gifted would instruct the boy's entire third grade class for 50 minutes per week, and would provide an additional 50 minutes of instruction per week to a small group of the child and his bright peers. The school psychologist would provide counseling and social skill training on a small group basis within the child's classroom for 30 minutes per week. Although the June 14, 1996 instructional plan annexed to the boy's IEP referred to the boy's expected use of a computer in school, and respondent's staff testified that the boy would have the use of a laptop computer to address, in part, his handwriting difficulties, I note that the boy's IEP did not indicate that the child required any specialized equipment or adaptive devices (cf. 8 NYCRR 200.4 [c][2][vii]). The IEP included annual goals related to the child's skills in reading, writing, mathematics, listening, and speaking. In addition, there were six annual goals for "management", relating to such things as participation in small group activities, working independently in class, and remaining on task in the classroom.

        On or about June 5, 1996, before the CSE prepared the boy's IEP for the 1996-97 school year, petitioner requested that an impartial hearing be held. The hearing in this proceeding began on July 23, 1996. Petitioner asserted that the child's special education program for the 1995-96 school year had failed to meet her son's needs, and that the CSE had erred in recommending that the child receive a similar program during the 1996-97 school year. She also asserted that she had been denied to actively participate in the development of her son's IEP, and that the CSE had been untimely in making a recommendation for the boy's educational program during the 1996-97 school year. Respondent contended that the boy had made academic progress, and had improved emotionally during the 1995-96 school year. It urged the hearing officer to uphold the CSE's recommendation for the 1996-97 school year. The hearing concluded on August 19, 1996.

        In his decision which was rendered on September 3, 1996, the hearing officer found that petitioner had actively participated in the development of her son's IEP, and that she had waived any objection to the alleged untimeliness of the IEP. He rejected petitioner's contention that the CSE had failed to give due consideration to Dr. Chieco's recommendations for the child's educational program, or to the report given by the child's second grade teacher near the end of the 1995-96 school year. The hearing officer also found that the CSE had adequately evaluated the child, before making its decision about the child's educational program for the 1996-97 school year. He further found that the child's IEP annual goals and short-term instructional objectives adequately addressed the boy's special education needs. Finding that the proposed educational program was appropriate to meet the boy's needs in the least restrictive environment, the hearing officer rejected petitioner's claim that her son would not be appropriately grouped for instructional purposes with the other children in the resource room program which he was to attend.

        Petitioner contends that the hearing officer abused his discretion, and denied petitioner her right to due process of law, by not allowing the Director of the BOCES Gifted and Talented Program to testify at the hearing. At the request of petitioner's hearing, the hearing officer signed a subpoena for the BOCES Director to testify at the hearing. He did so with the understanding that respondent would be afforded an opportunity to offer its legal objection to the testimony of the BOCES Director. After hearing the arguments by the parties' attorneys on the matter at the hearing on August 15, 1996, the hearing officer noted that he had been advised by the attorneys for BOCES that the Director would not be available for several weeks. He found that the Director's testimony was not relevant to the issue of the appropriateness of the educational program recommended by respondent's CSE, and denied petitioner's application for the Director to testify.

        Federal and State regulations accord each party the right to present evidence through documents and the testimony of witnesses (34 CFR 300.508 [a][2]; 8 NYCRR 200.5 [c][4]). However, it is within a hearing officer's discretion to limit irrelevant or unduly repetitious evidence and testimony (Application of a Child with a Handicapping Condition, Appeal No. 92-18; Application of a Child with a Disability, Appeal No. 94-4). The hearing officer's responsibility in this proceeding was to determine the appropriateness of the educational program which the CSE had recommended (Application of a Child with a Handicapping Condition, Appeal No. 90-17). When questioned by the hearing officer about the purpose of the proposed testimony by the BOCES Director, petitioner's attorney acknowledged that the BOCES Director had no personal knowledge about the child. The Director was expected to testify about a BOCES program for gifted LD children. However the appropriateness of the program which the CSE recommended could not be determined by comparing it to the BOCES program (Application of a Handicapped Child, 19 Ed. Dept. Rep. 94; Application of a Handicapped Child, 21 id. 708). Therefore, I find that the hearing officer did not abuse his discretion by excluding testimony which was not relevant to the issue before him (Application of a Child with a Disability, Appeal No. 95-20; Application of a Child with a Disability, Appeal No. 96-51).

        Petitioner argues that the IEP which the CSE prepared for her child was procedurally and substantively flawed. She contends that she was not afforded an opportunity to meaningfully participate in the development of her son's IEP because she was not allowed to visit the BOCES to observe its program for children who are learning disabled and gifted. At the hearing, petitioner testified that when she asked the BOCES Director whether she could visit the BOCES program, the Director had indicated that she could not deal directly with the parent, and that the CSE would have to recommend the program. Petitioner further testified that she had discussed the BOCES program with respondent's Superintendent of Schools and other school district employees. However, even if I were to assume that a school district employee or the CSE had to give permission for petitioner to visit the BOCES, I find that there is no evidence in the record that petitioner expressly asked for permission to visit the BOCES. The record does reveal that petitioner was extensively involved with her child's educational program for the 1995-96 school year and that she and her husband participated in a number of meetings with the CSE and school staff prior to the preparation of the child's IEP at the CSE meeting on June 17, 1996. She does not allege that she did not participate in the June 17, 1996 meeting. I find that her argument that she was not afforded an opportunity to participate in the development of the child's IEP is without merit.

        Petitioner also argues that her son's IEP was not prepared on a timely basis. The annual review process began at the CSE's meeting on April 26, 1996, but was not completed until the June 17, 1996 CSE meeting. It should be noted that neither Federal nor State regulation prescribes a time limit for the completion of an annual review, provided that the review is conducted at least annually, i.e. within one year after the CSE's last review of the child, which in this case occurred on October 19, 1995. Petitioner contends that the CSE violated the provisions of 8 NYCRR 200.4 (c), by not completing its annual review within 30 days. I find that her reliance upon the regulation is misplaced, because the regulation does not apply to an annual review, rather it applies to a CSE's consideration of a child who has been referred to the CSE.

        Petitioner asserts that the CSE lacked an adequate basis to make a recommendation about her son's educational program because it failed to re-evaluate her son prior to the child's annual review. A CSE is required to re-evaluate a child once every three years, or more frequently if conditions warrant, or the child's parent or teacher requests an evaluation (34 CFR 300.534 [b]). Petitioner does not allege that she or a teacher asked the CSE to conduct an evaluation. Since each of the child's required evaluations had been conducted not more than one year before the annual review, the CSE was not required to conduct a further evaluation, unless it determined, or should have determined, that conditions warranted an additional evaluation. Upon the record which is before me, I find that an additional evaluation was not warranted. Although Dr. Chieco reported that the child's emotional condition had deteriorated during the time between her initial evaluation of him in April, 1995 and her re-evaluation of him in June, 1996, I note that she acknowledged that she had no direct knowledge of how the boy functioned in school. I have reviewed the testimony of the child's teachers and the school psychologist who observed the boy in school, and I find that there was no indication of a significant change in the child's emotional state as evidenced by his performance in school. Indeed, the testimony of the child's resource room teacher suggested that the boy had begun to feel better about himself, and was beginning to learn more effectively in school. Petitioner's reliance upon the provisions of 34 CFR 104.35 [a] is misplaced, since the child's placement was unchanged.

        I have considered petitioner's contention that the CSE's recommendation should be annulled because the CSE allegedly lacked the results of a current physical examination. State regulation requires that an initial evaluation include a physical examination of the child (8 NYCRR 200.4 [b][1][i]). The record reveals that the CSE had the child's cumulative health record which indicated that he had been examined in 1993, and that his hearing and vision had been tested in 1995. In addition, the CSE had a report from the psychiatrist/neurologist who had examined the child in 1995. I find that petitioner's contention is without merit.

        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).

        Having reviewed the child's proposed IEP for the 1996-97 school year, which incorporated the plan prepared by respondent's staff on June 14, 1996, I find that the IEP accurately described the child's academic, management, social, and physical needs, as revealed by his evaluations and the reports by his regular education and resource room teachers. In addition to including the results of various tests which have been administered to him, the IEP with its incorporated plan identified the child's weaknesses in organization, attention, and fine motor skills, as well as his difficulty in relating appropriately to adults and/or peers, and his frustration in performing certain school related responsibilities. However, I note that the child's psychological evaluation revealed that the child had deficits in his visual-motor integration and visual memory skills, which could affect the manner in which he learns. Although it can be inferred from the IEP goals and short-term instructional objectives that an auditory learning approach would be emphasized by his teachers, I recommend that the IEP be revised to more explicitly describe the boy's learning style.

        Petitioner argues that the child's IEP annual goals and short-term instructional objectives failed to address his unique needs. She refers specifically to her son's social needs, and to the deficits in his fine motor skills, and more particularly, his handwriting ability. With regard to the child's social skills, I note that the boy's IEP included an annual goal to develop his ability to participate in a small group setting. In addition, the plan approved by the CSE provided a program which included push-in counseling, resource room services, and enrichment (instruction for the gifted) to help the child to work in groups. It also indicated that various strategies would be used to develop self-monitoring, problem solving, and social skills training. As noted above, the IEP did not specify that the boy would be provided with the use of a computer to alleviate some of his difficulty writing, but the plan incorporated in the IEP indicated that he would have access to a computer. I must note that the record does not clearly reveal whether the child had already learned keyboarding skills. I recommend that the IEP be revised to indicate the extent of his keyboarding skills, and, if appropriate, to provide an annual goal to improve his keyboarding proficiency. The IEP also indicated that alternative approaches to written work would be used with the boy, such as oral reports, video presentations, and computer word processing. The IEP also included an annual goal that the child would develop "transition" writing skills, with an objective related to improving the legibility of his handwriting.

        Although annual goals for reading and mathematics were included in the IEP, most of the annual goals related to the child's management needs, such as his distractibility, and his difficulty completing work independently in the classroom. The IEP and its incorporated plan provided that respondent's staff, working as a team and coordinated by a case manager, would compact the curriculum for the boy, provide him with assignments which held his interest and attention, and reduce burdensome written work. The child's engagement in the learning process would be encouraged with use of academic "contracts", which would detail his teachers' expectations, and the consequences for completing and failing to complete a contract. I note that the child's resource room teacher testified that the boy had successfully performed a series of oral contracts for her in June, 1996, which included working independently on assignments from her while he was in his regular second grade classroom.

        Petitioner's primary objection to the child's IEP is that it allegedly failed to provide appropriate special education services to her son. She contends that the CSE ignored substantial evidence of her son's inability to function successfully in a regular education class during the 1995-96 school year. Petitioner argues that the placement of her child in a regular education third grade class during the 1996-97 school year would be inappropriate for him, regardless of the curriculum modifications, and push-in and pull-out services which respondent CSE's recommended that the boy receive. I disagree with her contention.

        There is no question that the child's disabilities, especially his ADHD, have impacted upon his ability to independently complete certain routine classroom assignments. However, the results of the standardized achievement tests which were administered to the boy by his teachers in school, and by Dr. Chieco at the end of the 1995-96 school year, clearly established that the child made academic progress during that school year. I have carefully reviewed the reports and the testimony of the child's teachers, as well as that of the school psychologist who observed the boy in his second grade class and in his resource room. I note that the boy's regular education teacher in the second grade had opined in her written report to the CSE that the boy had not "met the requirements necessary to work in a large group independently." When questioned at the hearing about what she meant by working independently, the second grade teacher explained that independent work required either writing, categorizing, or drawing. Those activities were obviously areas of difficulty for the child because of his disabilities. However, the program which the CSE proposed would more effectively accommodate the boy's needs by limiting the amount of written work, and allowing him to demonstrate his knowledge by alternative means. The second grade teacher also testified that the boy's ability to function independently was impaired by his inattention. Nevertheless, she had indicated on the boy's report card that when he was directed and stimulated, the boy worked with great concentration for long periods of time. The child's resource room teacher, in her testimony, described a child who was beginning to feel better about himself, and to work for her on a number of tasks, not only in her resource room, but also in his second grade classroom.

        School districts are required by Federal and State regulation to place each child with a disability in the least restrictive environment (34 CFR 300.500; 8 NYCRR 200.6 [a] [1]). While the requirement that a child be placed in the least restrictive environment must be balanced against the requirement that the child receive an appropriate education (Briggs v. Bd. Of Ed. Of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989], I am satisfied on the record which is before me that petitioner's child could receive an appropriate education in a regular education third grade class, with the specialized services and support which the CSE had recommended for him.

        Finally, I note that petitioner argues that respondent failed to demonstrate that her son would be appropriately grouped for instructional purposes in the resource room class recommended by the CSE, in violation of 8 NYCRR 200.6 (a) (3). At the hearing, respondent introduced into evidence a profile of the students in the proposed resource room class. With one exception, the abilities and needs of these children and petitioner's son appeared to be similar. On August 6, 1996, respondents testified that the pupil whose skills appeared to be well above the level of the other youngsters in the resource room had in fact not been assigned to the resource room program.

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

 

       THE APPEAL IS DISMISSED.

 

 

 

Dated: Albany, New York __________________________
February 5, 1997 FRANK MUŅOZ